Labour Disputes
Texto da decisão
REF FPSD-5816
Decision of the
Dispute Resolution Chamber
passed on 8 June 2022
regarding an employment-related dispute concerning the player
Yanis Hamache
BY:
Daan de Jong (Netherlands)
CLAIMANT:
Yanis Hamache, France
Represented by Mr Romain Bizzini
RESPONDENT:
Boavista FC, Portugal
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REF FPSD-5816
I.
Facts of the case
1.
On 3 August 2022, the French player Yanis Hamache (hereinafter the Claimant or the Player) and
the Portuguese club Boavista FC (hereinafter the Respondent or the Club) concluded an
employment agreement (hereinafter the Employment Agreement), valid as from
5 September 2020 until 5 June 2023.
2.
In Clause 3 of the Employment Agreement, the Claimant and the Respondent (jointly referred to
as the Parties) agreed upon, inter alia, the following financial terms:
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EUR 90,000 as yearly salary, payable in 10 equal instalments “excluding bonus, for the
sport season 2021/2022 subject that the Player plays at least 5 games as titular the
previous season”;
EUR 7,000 as yearly contribution for accommodation and transportation;
EUR 20,000 as bonus if the Player “plays 15 official games as a regular player (minimum
45 minutes each) in each season” (see Clause 3 lit. e of the Employment Agreement).
3.
In the season 2020/2021, the Claimant participated in exactly 15 games, in which he played
minimum 45 minutes.
4.
On 9 November 2021, the Claimant sent a letter to the Respondent, requesting the amount of
EUR 29,000, corresponding to a bonus of EUR 20,000 and a salary of October 2021. The Claimant
granted the Respondent 10 days to comply with its contractual obligation.
5.
On 24 November 2021, the Claimant sent a letter to the Respondent, requesting the amount of
EUR 39,000, corresponding to a bonus of EUR 20,000 and a salary of October 2021. Furthermore,
in the said letter, the Claimant alleged that he “has been made aware that more than 10 players
of the professional team have received so far their bonus of EUR 10,000 promised last season in
the event the Club stayed in Primeira Liga” and, consequently, requested the amount of
EUR 10,000. The Claimant granted the Respondent 5 days to comply with its contractual
obligation.
6.
On 7 March 2022, the Claimant sent a letter to the Respondent, requesting the amount of
EUR 45,000, corresponding to various bonuses:
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7.
“EUR 15,000 regarding its EUR 20,000 bonus for 2020/2021 since he started 15 games as
titular (Boavista did pay my client EUR 5,000 in this respect on 11 February 2022);
EUR 20,000 regarding its bonus for 2021/2022 since he already started 15 games as titular;
and
EUR 10,000 regarding its bonus for 2020/2021 in the event the Club stayed in Primeira
Liga, which it did and my client was part of.”
The Claimant granted the Respondent 10 days to comply with its contractual obligation.
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8.
In the season 2021/2022, the Claimant participated in 23 games, in which he played minimum
45 minutes.
II. Proceedings before FIFA
9.
On 21 April 2022, 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
10. The requests for relief of the Claimant were the following:
“ORDER the Club to pay to the Player the total amount of EUR 54,700 net, breakdown as
follow:
− EUR 15,000 in respect of the starting bonus (15 matches) for the 2020/2021 season ;
− EUR 20,000 in respect of the tenure bonus (15 matches) for the 2021/2022 season;
− EUR 10,000 in retention bonus for the 2020/2021 season;
− EUR 9,700 for the salary for April 2022.
STATE that these sums will be increased by an interest at the legal rate of 5%;
ORDER the Club to provide the Player with his pay slips for September, October, November and
December 2021.
ORDER the Club to pay the Player the amount of EUR 3,000 for legal fees;”
11. As to the outstanding salaries, the Claimant elaborated that “received a monthly remuneration of
EUR 9,700 net, excluding bonuses. This amount is corroborated by the pay slips that the Player
received between January and March 2022.”
b. Position of the Respondent
12. Despite being invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as 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 21 April 2022 and submitted for
decision on 8 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.
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14. Subsequently, 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 lit. b) of the Regulations on the Status
and Transfer of Players (March 2022 edition), he 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 Portuguese club.
15. Finally, 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 Player (March 2022 edition) and considering that the
present claim was lodged on 20 March 2022, the March 2022 edition of said regulations
(hereinafter the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
16. 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
17. His 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, he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
i. Main legal discussion and considerations
18. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the fact that the Claimant alleged that certain financial obligations by the
Respondent as per the Employment Agreement, namely the salary of April 2022 (EUR 9,700), the
starting bonuses for seasons 2020/21 and 2021/22 (EUR 35,000) as well as a retention bonus,
remained allegedly outstanding.
19. In this context, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the Parties, whether the claimed amounts had in fact remained unpaid by
the Respondent and, if so, whether the latter had a valid justification for not having complied with
its financial obligations.
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20. At this point, the Single Judge recalled that based on Clause 3 of the Employment Agreement, the
Claimant was entitled to a monthly salary of EUR 9,700 (including the contribution for
accommodation and transportation).
21. The Single Judge continued by recalling that also the starting bonus was stipulated in Clause 3 lit. e
of the Employment Agreement and that the Claimant provided sufficient evidence to prove that
in both seasons (2020/21 and 2021/22) the respective conditions were met.
22. The Single Judge nonetheless noted there was no contractual provision stipulating the entitlement
to the alleged retention bonus and, consequently, the Single Judge concluded that there is no
contractual basis for such claim.
23. After recalling the contractual provisions, the Single Judge noted that in the case at hand, the
Respondent bore the burden of proving that it indeed complied with the financial terms of the
contract concluded between the Parties, yet that the Respondent failed to reply to the claim.
24. Thus, the Single Judge stressed the allegations of the Claimant remained uncontested. Bearing in
mind the basic legal principle of pact sunt servanda, which in essence means that agreements
must be respected by the parties in good faith, the Single Judge concluded that the Respondent
is held liable to pay the Claimant the outstanding amounts deriving from the contract concluded
between the Parties, namely the salary of April 2022 (EUR 9,700) and the starting bonuses for
seasons 2020/21 and 2021/22 (EUR 35,000).
ii. Consequences
25. Having stated the above, the members of the Single Judge turned its attention to the question of
the consequences.
26. The Single Judge observed that the financial obligations deemed as outstanding in the present
case correspond to EUR 44,700.
27. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the Claimant interest at the rate of 5%
p.a. on the outstanding amount as from 21 May 2022 until the date of effective payment.
iii. Compliance with monetary decisions
28. 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.
29. 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,
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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.
30. 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.
31. 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.
32. 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
33. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the Parties. 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, he decided that no procedural costs were to be imposed on
the Parties.
34. 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.
35. Lastly, the Single Judge concluded his 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, Yanis Hamache, is partially accepted.
2.
The Respondent, Boavista FC, has to pay to the Claimant, the following amount(s):
- EUR 44,700 as outstanding remuneration plus 5% interest p.a. as from 21 May 2022 until the
date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
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.
2.
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.
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.
6.
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.
7.
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).
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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