DRC Overdue Payables
Texto da decisão
REF FPSD-4193
Decision of the
Dispute Resolution Chamber
passed on 9 June 2022
regarding an employment-related dispute concerning the player Driss Fettouhi
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Michele Colucci (Italy), member
Iñigo Riestra (Mexico), member
CLAIMANT:
Driss Fettouhi, Morocco
Represented by Joaquín Jofre Fernández-Abasca
RESPONDENT:
Al Ahli, Saudi Arabia
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REF FPSD-4193
I.
Facts of the case
1.
On 5 October 2020, the Moroccan player, Driss Fettouhi (hereinafter: the Claimant), and the Saudi
Arabian club, Al Ahli (hereinafter: the Respondent) concluded an employment contract valid from
5 October 2020 until 30 June 2021.
2.
On 10 August 2021, the Claimant and Respondent concluded a settlement agreement (hereinafter:
the settlement agreement), in terms of which the Respondent undertook to pay to the Claimant the
amount of EUR 466,334 net as follows:
3.
-
EUR 200,000 net on 15 September 2021
-
EUR 266,334 net on 15 December 2021.
Clause 4.7 of the settlement agreement established the following:
“The player reserves all his rights in connection with the contract signed on 05 October 2020 to lodge a
claim before FIFA Players' Status Department respectively at the competent bodies of FIFA's DRC; if the
"player" has to claim at FIFA to get the rest of unpaid amount, the parties agree a penalty of €5.000 (five
thousand euros) per each day of delay in the payment of the total amounts established in Clause 2.”
4.
On 27 September 2021, the Claimant sent a default notice to the Respondent requesting payment
of the outstanding amounts due, granting it a deadline of 15 days to comply with payment thereof.
5.
According to the Claimant, due to the failure of the Respondent to pay the amount of EUR 200,000
net on 15 September 2021, and as per clause 2 of the settlement agreement, the total amount of
EUR 466,334 net, became immediately due and payable.
6.
On 29 October 2021, the Claimant sent an email to the Respondent indicating the following:
“As we did not have any answer to our communication, we are forced to act before the competent
jurisdictional bodies.”
7.
The Claimant indicated that “despite this written notification, the Club neither made any payment nor
gave any response to the communications.”
II. Proceedings before FIFA
8.
On 3 November 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
9.
The requests for relief of the Claimant, were that the Respondent pay him the total amount of
EUR 706,334 net, which amount “will increase by EUR 5,000 for each day of delay” – corresponding
to the following:
(a) EUR 466,334 net as outstanding amount as per the settlement agreement; and
(b) EUR 240,000 as penalty.
10. The Claimant further requested that the Respondent cover all the costs of the proceedings.
11. Additionally, the Respondent requested that the Claimant pays his legal fees in regard to this
procedure “calculated in 30.000 CHF (thirty thousand), as per the latest DRC jurisprudence that has
allocated legal costs in favour of the winning side of the procedure.”
b. Position of the Respondent
12. In its reply to the claim, the Respondent mentioned that it is in a critical financial situation due to
the impact of the COVID-19 pandemic, hence the delay of payment to the Claimant.
13. In this context the Respondent requested that the Claimant consider “a new reasonable schedule
that can be respected by the Respondent namely to postpone payments as follows”:
-
EUR 266,334 on 15 February 2022
-
EUR 200,000 on 15 March 2022.
14. The Respondent argued that the “penalty is clearly excessive and disproportionate as per Swiss Law
and the well-established Jurisprudence. Accordingly, we demand a rejection of the penalty of €5.000 per
each day of delay due to its injustice, unreasonable, disproportionate and excessive.”
15. In conclusion, the Respondent requested that the FIFA DRC:
(a) Accept the proposal of the respondent to settle the outstanding amount due to the Claimant.
(b) In case of the proposal is rejected order Al Ahli FC to Pay only the First instalment
(c)
Dismiss the request of the penalty of EUR 5,000 (per each day of delay and consider that is clearly
excessive, unreasonable, and disproportionate and should be rejected.
(d) adopt that this claim should not be treat under the article 12 bis of the FIFA Regulations on the
Status and Transfer of player and consider that the Claim do not fulfil the requirements under
article 12bis of the FIFA Regulations on the Status and Transfer of.
(e)
Reject the legal fee requested by the claimant.
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c. Additional Comments Claimant
16. The Claimant in reply to the Respondent’s new schedule payment plan mentioned that he “cannot
consider any payment that does not include the penalty mutually agreed between the parties, the legal
costs and the costs of the proceedings.”
17. In this context the Claimant indicated that the penalty was agreed to as such “because the
Settlement Agreement did not establish any interest in case of late payment, it was only established a
penalty.”
18. In conclusion the Claimant reiterated his request as per his claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 3 November 2021 and submitted for decision on
9 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.
20. 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 a Moroccan player and a Saudi Arabian club.
21. 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 3 November 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
22. 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).
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c.
Merits of the dispute
23. 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 abovementioned 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
24. 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 non-compliance with the
settlement agreement can be upheld against the Respondent, due to the financial difficulties it
experienced in view of the outbreak of the COVID-19 pandemic.
25. In this context, the Chamber acknowledged that its task was to determine whether or not in the
matter at hand the Respondent is liable to pay to the Claimant the amounts stipulated in the
settlement agreement.
26. The members of the Chamber noted that the Respondent were not contesting the fact that the
outstanding amounts as per the settlement agreement were due to the Claimant, it merely argued
that it experienced financial difficulties due to the outbreak of the COVID-19 pandemic, accordingly
it proposed a new payment schedule to the Claimant, however the said payment schedule was
rejected by the latter.
27. In this respect, the DRC highlighted that the Respondent had not invoked such circumstances to
the Claimant, moreover it had failed to reply to the default notice sent by the Claimant.
28. In this context, the DRC mentioned that the arguments raised by the Respondent cannot be
considered a valid reason for non-payment of the monies claimed by the Claimant, in other words,
the reasons brought forward by the Respondent in its defence do not exempt the Respondent
from its obligation to fulfil its contractual obligations towards the Claimant.
29. In view of all the above, bearing in mind its extensive jurisprudence according to which financial
difficulties cannot be held as a valid reason to the non-payment of contractually agreed payments,
the DRC decided to reject the argumentation put forward by the Respondent in its defence.
30. Subsequently, the Chamber focused its attention on the penalty clause detailed in clause 4.7 of
the settlement agreement, which inter alia stipulates, “if the player has to claim at FIFA to get the rest
of unpaid amount, the parties agree a penalty of €5.000 (five thousand euros) per each day of delay in
the payment of the total amounts established in Clause 2.”
31. The DRC took note that the Respondent in its reply argued the said penalty clause is excessive and
disproportionate.
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32. In this context, the Chamber referred to its constant jurisprudence, in accordance with which
penalty clauses may be freely entered into by the parties and may be considered acceptable, in
the event that the pertinent written clause meets certain criteria, such as proportionality and
reasonableness. The Chamber further highlighted that in order to determine as to whether a
penalty clause is to be considered acceptable, the specific circumstances of the relevant case
brought before it shall be taken into consideration.
33. In the matter at hand, the Chamber remarked that in clause 4.7 of the settlement agreement, the
Claimant and Respondent indeed agreed to a penalty amount of EUR 5,000 per day, however, the
DRC established that a penalty fee of EUR 5,000, is in fact a hidden interest rate, on the basis that
it possibly constitutes a daily interest rate of 2,5 % on the amount of EUR 200,000 net and
approximately 2 % on the amount of EUR 266,334 net which would correspond to an interest rate
of more than 912% per annum. Accordingly, the DRC concluded that the said penalty is clearly
disproportionate and excessive.
34. In view of the foregoing, the Chamber considered that the interest rate provided for in clause 4.7
of the settlement agreement was disproportionate and unreasonable and should be reduced to
the maximum interest of 18% p.a as per its well-established jurisprudence.
ii. Consequences
35. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of the settlement agreement committed by the
Respondent.
36. 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 466,334
net as outstanding amount due as per the settlement agreement plus 18% interest p.a. from the
respective due dates as follows:
-
on the amount of EUR 200,000 net as from 16 September 2021; and
-
on the amount of EUR 266,334 net as from 16 December 2021.
37. Subsequently, the Chamber focused its attention to the Claimant´s request for legal expenses and
cost. In this regard, the Chamber referred to art. 25 par. 8 of the Procedural Rules which provides
that “No legal costs shall be awarded. Parties shall bear all their own costs in connection with any
procedure.”.
38. Taking the above into account, the Chamber decided that such request for legal costs should be
rejected.
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39. In addition, the Claimant established that the Respondent had delayed a due payment for more
than 30 days without a prima facie contractual basis.
40. In continuation, bearing in mind the foregoing considerations, the Chamber 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.
41. The Chamber established that in virtue of art. 12bis par. 4 of the Regulations he has competence
to impose sanctions on the Respondent. In this context, the DRC highlighted that, over the past
2 years under case ref. nos. FPSD-2369; FPSD-2384, FPSD-2445, FPSD-2432, FPSD-2434, FPSD2777, FPSD-4576 and FPSD-4147 the Respondent had already been found to have delayed a due
payment for more than 30 days without a prima facie contractual basis.
42. Moreover, the Chamber referred to art. 12bis par. 6 of the Regulations, which establishes that a
repeated offence will be considered as an aggravating circumstance and lead to a more severe
penalty.
43. Bearing in mind the above, the deciding body decided to impose a fine on the Respondent in
accordance with art. 12bis par. 4 lit. c) of the Regulations. On account of the above and taking into
consideration the total amount of overdue payables due, the Chamber regarded a fine amounting
to USD 80,000 as appropriate and hence decided to impose said fine on the Respondent.
iii. Compliance with monetary decisions
44. 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.
45. 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.
46. 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.
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47. 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.
48. 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
49. 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.
50. 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.
51. 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, Driss Fettouhi, is partially accepted.
2.
The Respondent, Al Ahli, has to pay to the Claimant, the following amount:
(a) EUR 466,334 net as outstanding amount plus 18% interest p.a. as from the respective due
dates until the date of effective payment as follows:
3.
-
on the amount of EUR 200,000 net as from 16 September 2021;
-
on the amount of EUR 266,334 net as from 16 December 2021.
A fine in the amount of USD 80,000 is imposed on the Respondent. (cf. note relating to the payment
of the fine below)
4.
Any further claims of the Claimant are rejected.
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).
NOTE RELATING TO THE PAYMENT OF THE FINE
If applicable, payments to FIFA should be made by wire transfer in US dollars (USD) to the following
bank account:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
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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