Labour Disputes
Texto da decisão
REF FPSD-8049
Decision of the
Dispute Resolution Chamber
passed on 7 December 2022
regarding an employment-related dispute concerning the player
Yanis Hamache
BY:
Jorge Gutiérrez (Costa Rica)
CLAIMANT:
Yanis Hamache, France
Represented by Mr Romain Bizzini
RESPONDENT:
Boavista FC, Portugal
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REF FPSD-8049
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.
Therein, 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.
On 24 November 2021, the Claimant sent a letter to the Respondent, alleging 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, inter alia, the amount of EUR 10,000. The Claimant granted
the Respondent 5 days to comply with its contractual obligation.
4.
On 7 March 2022, the Claimant sent a further letter to the Respondent, requesting, inter
alia, the amount of EUR 10,000, corresponding to a bonus. The Claimant granted the
Respondent 10 days to comply with its contractual obligation.
5.
On 21 April 2022, the Claimant lodged a claim before FIFA, requesting, inter alia,
“EUR 10,000 in retention bonus for the 2020/2021 season”.
6.
On 8 June 2022, the Single Judge of the Dispute Resolution Chamber passed a decision
(hereinafter the DRC Decision) in the said matter (Ref. Nr. FPSD-5816). Regarding the
payment of EUR 10,000 concerning the alleged retention bonus, the Single Judge ruled:
“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.”
7.
On 25 July 2022, the Respondent filed a Statement of Appeal with the Court of Arbitration
for Sport (the CAS).
8.
On 13 August 2022, the Respondent signed an acknowledgment of debt to the benefit of
the Claimant, according to which the former undertook to pay him the total amount of
EUR 45,000 on 20 September 2022 at the latest. This amount includes the outstanding
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EUR 35,000 ordered in the DRC Decision as well as an additional EUR 10,000 for the
retention bonus.
9.
Between 23 August and 7 September 2022, the parties tried to reach a mutual settlement
agreement regarding the outstanding payments based on the DRC Decision as well as the
recognized amount of EUR 10,000, however, to no avail.
10. On 20 September 2022, the Claimant sent a default notice to the Respondent, requesting
the amount of EUR 47,000, corresponding to an outstanding payment based on the
DRC Decision (EUR 35,000), EUR 10,000 for the retention bonus and EUR 2,000 for the
legal fees.
11. The Claimant granted the Respondent “until the end of the day” to make the respective
payment.
12. On 26 September 2022, a termination order was issued in the CAS Appeal.
13. On 28 October 2022, the DRC Decision has been executed.
II. Proceedings before FIFA
14. On 29 October 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
15. The Claimant requested the following amounts as well as an “interest at the legal rate of
5%” over the following amounts:
“EUR 10,000 in retention bonus for the 2020/2021 season, as it has been acknowledged by
the Club on 13 August 2022 (Exhibit no. 15);
EUR 2,000 for legal fees, as it has been acknowledged and accepted by the Club in the
subsequent correspondence (Exhibit no. 17);” (emphasis added by the Claimant)
b. Position of the Respondent
16. The Respondent filed the following request for relief:
“The Respondent shall not be condemned to pay to the Claimant the amounts of EUR 10,000,
nor EUR 2,000, nor interests at the legal rate of 5%.
The Claim shall be considered inadmissible.
If not, subsidiary the Respondent shall not be liable to pay the amount requested.”
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17. The Respondent was of the opinion that the claim shall be declared res judicata as the
amount of EUR 10,000 was previously dealt with in the said decision of FPSD-5816 and,
consequently, shall be declared inadmissible.
18. Subsequently, the Respondent argued that the document of 13 August 2022 was a
settlement agreement and “not only an acknowledgement of debt” by the Respondent.
19. Finally, the Respondent argued that its real intention was to recognize the amounts from
FPSD-5816 and the recognition of EUR 10,000 “was made under error of the Respondent,
with the Claimant totally aware of it.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. 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
29 October 2022 and submitted for decision on 7 December 2022. Taking into account
the wording of art. 34 of the October 2022 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.
21. 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 (October 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.
22. 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 (October 2022 edition)
and considering that the present claim was lodged on 29 October 2022, the October 2022
edition of said regulations (hereinafter the Regulations) is applicable to the matter at hand
as to the substance.
b. Admissibility of the claim
23. At this point, the Single Judge recalled the allegation of the Respondent that the claim
shall be declared res judicata. Nonetheless, the Single Judge rejected such argumentation.
In this respect, the Single Judge highlighted that the Respondent acknowledged that the
amount of EUR 10,000 was due after the said DRC Decision FPSD-5816 was passed in an
official document signed by the Club, which forms a basis for the present claim.
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c. Burden of proof
24. 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).
d. Merits of the dispute
25. 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
26. 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, namely the retention bonus for the 2020/2021 season
(EUR 10,000) and legal fees (EUR 2,000), remained outstanding.
27. At this point, the Single Judge recalled that on 13 August 2022, the Respondent signed an
acknowledgment of debt to the benefit of the Claimant, according to which the former
undertook to pay him the total amount of EUR 45,000 on 20 September 2022 at the latest,
including the amount of EUR 10,000 for the retention bonus.
28. Furthermore, the Single Judge recalled the argumentation of the Respondent that it wrote
the said document under error and that it is, therefore, not liable to make such payment.
29. In this regard, the Single Judge first noted that in the case at hand the Respondent bore
the burden of proving that it wrote the said document under error.
30. Nonetheless, the Single Judge noted that no such evidence was provided by the
Respondent. What is more, the Single Judge remarked that the said acknowledgement of
debt is on an official paper of the Respondent, signed by the latter and it explicitly
mentions that the amount should be paid and to what it corresponds to: “EUR 10,000
regarding its bonus for 2020/2021 in the event the Club stayed in Primeira Liga, which it did;”.
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31. 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 acknowledgement of debt, namely the retention bonus for the
2020/2021 season (EUR 10,000).
ii. Consequences
32. Having stated the above, the Single Judge turned his attention to the question of the
consequences.
33. The Single Judge observed that the financial obligations deemed as outstanding in the
present case correspond to EUR 10,000.
34. 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 29 October 2022 until
the date of effective payment.
iii. Compliance with monetary decisions
35. 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.
36. 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.
37. 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.
38. 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.
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39. 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.
e. Costs
40. Lastly, the Single Judge concluded his 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.
41. 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.
42. 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 10,000 as outstanding remuneration plus 5% interest p.a. as from 29 October 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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