Labour Disputes
Texto da decisão
REF FPSD-4222
Decision of the
Dispute Resolution Chamber
passed on 27 January 2022
regarding an employment-related dispute concerning the player Ljubomir
Fejsa
BY:
Clifford J. Hendel (USA / France), Chairperson
Andre Megale (Brazil), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Ljubomir Fejsa, Serbia
Represented by Radic & Radic Ltd
RESPONDENT:
Al Ahli, Saudi Arabia
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I.
Facts of the case
1.
On 8 October 2020, the Serbian payer, Mr Ljubomir Fejsa (hereinafter: the player or the
Claimant), and the Saudi club, Al Ahli (hereinafter: the club or the Respondent), concluded
an employment contract (hereinafter: the contract), valid as of 1 October 2020 until 30
September 2022.
2.
On 31 August 2021, the parties concluded a settlement agreement, whereby the club
undertook to pay to the player, inter alia, EUR 3,238,890 net, as follows (cf. clause 1 of the
termination agreement):
-
EUR 1,175,704 net by 15 October 2021;
EUR 412,637 net by 5 November 2021;
EUR 412,637 net by 5 December 2021;
EUR 412,637 net by 5 January 2022;
EUR 412,637 net by 5 February 2022;
EUR 412,637 net by 5 March 2022.
3.
Clause 3 of the termination agreement stipulates that, should the club fail to timely pay any
of the instalments due ex. clause 1 of the termination agreement, all amounts due as per the
said clause will immediately fall due and an interest rate of 5% p.a. would be payable by the
club, interest which shall start running 15 days after the date of the breach.
4.
By means of his letter dated 18 October 2021, the Claimant put the Respondent in default
of payment in the amount of EUR 3,238,890 net, corresponding to full value of the
termination agreement, thereby granting the club a 15 days’ deadline to remedy the default;
however, to no avail.
II. Proceedings before FIFA
a. Position of the Claimant
5.
On 7 November 2021, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration in the total amount of EUR 3,238,890 net,
corresponding to the whole value of the termination agreement, plus 5% interest p.a. as
from 1 November 2021.
6.
In his claim, the Claimant explained that, despite the content of clauses 1 of the termination
agreement and despite having put the Respondent in default of payment via his letter dated
18 October 2021, the Respondent failed to comply with its financial obligations towards him
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when failing to pay the first instalment of the termination fee, which activated clause 3 of
the termination agreement (hereinafter: the acceleration clause).
7.
In this context, the Claimant argued that, in view of the above, he is entitled to receive the
full value of the termination agreement from the Respondent, plus a 5% default interest that
is to run as from 1 November 2021.
b. Position of the Respondent
8.
In its reply to the claim, the club first explained that the club “is still in a very critical financial
situation characterized by a total absence of incoming amounts because of the persistence of
the effects of COVID19 Pandemic and consequently a net decrease of incoming amounts
from sponsors and a total absence of incoming amounts from ticketing”.
9.
The club further referred to proceedings whereunder it is allegedly pending to receive certain
amounts that would allow it to comply with its financial obligations towards the Claimant.
10. In this context, the club requested the Claimant to grant him an extension of the deadline to
pay the moneys due to the Claimant.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 7 November 2021 and submitted for
decision on 27 January 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.
12. 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 (August 2021 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 Serbian player and a
Saudi club.
13. 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
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and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 7 November 2021, the August 2021 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
14. 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
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
15. 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
16. The foregoing having been established, the Chamber moved to the substance of the matter,
and wished to recall that, within the scope of the present proceedings, the Claimant requests
to be awarded outstanding remuneration in the total amount of EUR 3,238,890 net,
corresponding to the whole value of the termination agreement, plus 5% interest p.a. as
from 1 November 2021, following the activation of the acceleration clause (clause 3 of the
termination agreement); and that, on its part, the Respondent implicitly acknowledged not
having proceeded with the payment of the amounts due to the Claimant as per the
termination agreement, invoking financial difficulties suffered by the club as a consequence
of the economic crisis the club has gone through upon the Covid-19 pandemic. In this
context, the Chamber further noted that the club requested to be granted an extension of
the deadline to proceed with the corresponding payments.
17. After having carefully analysed all the argumentation wielded by the parties, as well as the
documentary evidence provided, the DRC observed that It remained undisputed that the club,
(1) failed to pay the first instalment of the termination agreement by 15 October 2021 and
(2) remedy the default within the 15 days’ deadline granted by the Claimant in his letter dated
18 October 2021.
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18. Thus, the Chamber pointed out that, as argued by the Claimant, clause 3 of the termination
agreement (the acceleration clause) was validly activated and, therefore, the remaining
instalments of the termination fee fell due immediately upon the club’s non-compliance with
the payment of the first instalment of the termination fee.
19. Considering the Respondent’s request to be granted an extra deadline to pay the amounts
outstanding, the Chamber unanimously underscored that the said petition is not for the
Chamber to uphold but by the Claimant, with whom the Respondent had the opportunity to
discuss prior to the opening of the present proceedings. However, stressed the Chamber,
from the documentation on file (or from the absence of it), it can be inferred that the
Respondent failed to reply to the default notice sent by the Claimant on 18 October 2021,
thereby missing its potential opportunity to request a deadline extension to remedy its
financial default.
ii. Consequences
20. 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.
21. The Chamber observed that the outstanding remuneration due to the player amounts to EUR
3,238,890 net, i.e. the whole value of the termination fee (ex. clauses 1 and 3 of the
termination agreement).
22. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amount of EUR
3,238,890 net.
23. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. as from 1 November 2021 until the date of effective payment. In this respect, the
Chamber explained that, in principle, as per the wording of clause 3 of the termination
agreement, the dies a quo considering the payment of default interest should start running
on 31 October 2021, i.e. 15 days after the breach (the lack of payment of the first instalment
of the termination fee); however, since the Claimant requested to be granted interest as from
1 November 2021, the dies a quo shall be the said date in order not to incur in ultra petita.
iii. Compliance with monetary decisions
24. 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.
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25. In this regard, the DRC 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.
26. Therefore, bearing in mind the above, the DRC 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.
27. 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.
28. 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. 24 par. 8 of the
Regulations.
d. Costs
29. 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.
30. 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.
31. 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, Ljubomir Fejsa, is accepted.
2.
The Respondent, Al Ahli, has to pay to the Claimant EUR 3,238,890 net as outstanding
remuneration, plus 5% interest p.a. as from 1 November 2021 until the date of effective
payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
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.
5. 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.
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6. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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