Dispute Resolution Chamber
Texto da decisão
REF FPSD-2613
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 14 July 2021
regarding an employment-related dispute concerning the player Youssef Fouzai
BY:
Stijn Boeykens (Belgium), DRC Judge
CLAIMANT:
Youssef Fouzai, Tunisia
Represented by Mr Chagtmi Riadh
RESPONDENT:
Al Fayha Club, Saudi Arabia
Represented by Mr Mohamed Rokbani
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REF FPSD-2613
I.
FACTS OF THE CASE
1.
On 21 September 2019, the Claimant and the Respondent concluded an employment
agreement (hereinafter: the contract), valid between 1 October 2020 and 30 July 2021.
2.
On 9 February 2020, the Claimant and the Respondent signed a termination agreement,
based on which the contract would be terminated with immediate effect and based on
which the Claimant was entitled to receive the total amount of USD 84,000 as follows:
-
USD 40,000 upon signing of the settlement agreement;
USD 22,000 on 31 March 2021;
USD 22,000 on 31 May 2021.
3.
Art. 7.6 of the settlement agreement contains the following clause: ‘The club is obliged
to respect the payment deadlines of the amount agreed in article 4 paragraph 3,
and in the event that one of the payments is delayed by more than 10 days than all the rest
of the entire amount will be immediately due and payable, Alfayha FC will be obliged to
pay the rest of the entire amounts and also a delay penalty of 20% of the rest amount not
paid, will apply’.
4.
On 12 April 2021, the Claimant put the Respondent in default for the amount of USD
44000, plus a 20% penalty of USD 8,800, providing the Respondent with a 10 days’
deadline to remedy its default, however to no avail.
II.
PROCEEDINGS BEFORE FIFA
5.
On 24 May 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
6.
On 24 May 2021, the Claimant lodged a claim against the Respondent in front of FIFA,
claiming the amount of USD 44,000 as outstanding amount per the settlement agreement
and the amount of USD 8,800 as penalty under the settlement agreement, plus 5% interest
p.a. as from the respective due dates.
7.
In his claim, the Claimant explains that the Respondent failed to pay the second instalment,
resulting in the remaining amount of USD 44,000 plus a penalty becoming due.
b.
8.
Position of the Respondent
In its reply, the Respondent argued that due to the COVID-19 pandemic, it suffered from
financial problems and that as a result of this force majeure situation (which is confirmed
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by a decree issued on 6 April 2020 by the Minister of Human Resources and Social
Development), it was not in a position to timely pay the agreed amounts.
9.
In conclusion, the Respondent asks that FIFA reschedules the payments as follows:
-
III.
USD 22,000 on “31 December 2021”;
USD 22,000 on 30 January 2021.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
10.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as DRC
judge) 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 24 May 2021 and submitted
for decision on 14 July 2021. Taking into account the wording of art. 21 of the 2021 edition
of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
11.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit.
a) and b) of the Regulations on the Status and Transfer of Players (edition February 2021),
the Dispute Resolution Chamber (DRC) judge is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Tunisian player and a Saudi Arabian club.
12.
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 Player (edition February 2021), and
considering that the present claim was lodged on 24 May 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
13.
The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
14.
In this respect, the DRC judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
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pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
15.
Merits of the dispute
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the merits of the dispute. In this respect, the DRC judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC judge emphasised that in the following
considerations he 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 took note of the fact that the parties strongly dispute whether the amounts agreed in
the settlement agreement should be paid in the original agreed dates, and whether a
penalty in the amount of 20% of the outstanding amount is due.
17.
In this context, the Chamber acknowledged that it its task was to determine whether the
Respondent had submitted valid arguments, which would lead to the conclusion that the
originally agreed dates are not reasonable, as well as whether or not the agreed penalty in
clause 7.6 of the settlement agreement is considered valid and applicable in the matter at
hand.
18.
First of all, the DRC judge addressed the argumentation of the Respondent, that in view of
the outbreak of the COVID-19 pandemic, it deems that it is entitled to a rescheduling of
the payment plan as per the settlement agreement.
19.
In this respect, the DRC judge was of the opinion that the above argumentation of the
Respondent cannot be upheld, as the COVID-19 outbreak is not considered by FIFA a force
majeure situation in any specific country or territory, or that any specific employment or
transfer agreement was impacted by the concept of force majeure. It follows from these
reasons that in principle, a party to a contract has in principle the obligation to comply with
its financial obligations as per an agreement.
20.
In absence of a direct causal relation between the alleged financial impact of the outbreak
of the COVID-19 pandemic on the Respondent, as well as the absence of any further
documentation, the DRC judge decided that the two instalments of EUR 22,000 each are
due on their initial due dates of 31 March and 31 May 2021.
21.
What is more, in relation to the claimed penalty of 20% in case of late payment of any of
the instalments agreed as per the settlement agreement, the DRC judge concluded that
penalty clauses may be freely entered into by the contractual parties and may be considered
acceptable, in the event that the pertinent written clause meets certain criteria such as
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proportionality and reasonableness. In this respect, the DRC judge 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 also be taken into consideration.
22.
In the specific case at hand, the DRC judge deemed that the penalty fee of 20% of the total
outstanding amount of USD 44,000, i.e. USD 8,800, which the parties contractually agreed
upon in the context of terminating the employment relation, is both proportionate and
reasonable in the case at hand.
ii. Consequences
23.
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.
24.
Consequently, the DRC judge decided that in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant the two instalments
in the amount of USD 22,000 each, as agreed upon in the settlement agreement.
25.
Moreover, in line with the well-established jurisprudence of the Chamber as well as the
request of the Claimant, the DRC judge decided to award 5% interest p.a. on the
aforementioned amounts as from their respective due dates.
26.
Furthermore, the DRC judge concluded that Respondent is also liable to pay to the Claimant
a penalty in the amount of USD 8,800.
27.
In addition, the DRC judge decided – in line with the Chamber’s well-established
jurisprudence - to reject the Claimant’s request for interest to be awarded on said penalty,
as this would be considered a double penalty.
iii. Compliance with monetary decisions
28.
Finally, taking into account the consideration under numbers 24. and 26. above, the DRC
judge referred to par. 1 lit. and 2 of art. 24bis 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.
29.
In this regard, the DRC 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.
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30.
Therefore, bearing in mind the above, the DRC 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. 24bis par. 2, 4, and 7 of the Regulations.
31.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
32.
The DRC 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. 24bis
par. 8 of the Regulations.
d.
Costs
33.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
34.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
35.
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 DISPUE RESOLUTION CHAMBER (DRC) JUDGE
1.
The claim of the Claimant, Youssef Fouzai, is accepted.
2.
The Respondent, Al Fayha Club, has to pay to the Claimant, the following amount:
- USD 44,000 as outstanding remuneration, plus 5% interest p.a. until the effective date of
payment as follows:
on the amount of USD 22,000 as from 1 April 2021;
on the amount of USD 22,000 as from 1 May 2021.
- USD 8,800 as penalty.
3.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
4.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the 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 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
6.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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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