Dispute Resolution Chamber
Texto da decisão
REF FPSD-1888
Decision of the
DRC Judge
passed on 16 June 2021
regarding an employment-related dispute concerning the player Aymen Hussein
Ghadhban
COMPOSITION:
Alexandra Gómez Bruinewoud (Uruguay / Netherlands), DRC Judge
CLAIMANT:
Aymen Hussein Ghadhban, Iraq
Represented by Nezar Ahmed
RESPONDENT:
CS Sfaxien, Tunisia
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REF FPSD-1888
I.
FACTS OF THE CASE
1.
On 16 July 2020, the DRC decided the matter Ref. no. 19-02268 between the parties and
concluded that the Respondent has to pay to pay to the Claimant the amount of USD
50,000 plus 5% interest p.a. as from 2 December 2019 until the date of effective payment.
2.
On 17 November 2020, the player from Iraq, Aymen Hussein (hereinafter: Claimant), and
the Tunisian club, CS Sfaxien (hereinafter: Respondent) signed a settlement agreement,
according to which the Respondent undertook to pay the Claimant the amount of USD
60,000 in two instalments, as follows:
- USD 30,000 on 30 December 2020;
- USD 30,000 on 30 January 2021.
3.
Furthermore, art. 3 of the settlement agreement established: “In the event the First Party
[CS Sfaxien] fails to pay any of the above-mentioned instalments at their specific dates: (i)
the First Party [CS Sfaxien] shall be obliged to pay to the Second Party [Player] an additional
delay penalty at 15% p.a. of the outstanding amounts as of the above-mentioned dates of
payment until effective date of final payment, and (ii) a default interest at 5% p.a. of the
outstanding amounts as of the above-mentioned dates of payment until the effective date
of final payment, which shall be applied in addition and on top of the 15% p.a. delay
penalty.”
4.
On 23 November 2020, CAS issued a termination order due to the settlement agreement
concluded between the parties.
II.
PROCEEDINGS BEFORE FIFA
5.
On 26 February 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.
According to the Claimant, the amount resulting from the settlement agreement remained
outstanding up to date.
7.
Moreover, the Claimant held that a penalty of 20% is not abusive or excessive and should
therefore be awarded.
8.
On account of the above, the Claimant, requested payment of USD 60,000 including an
interest rate of 20% p.a. as of the respective due dates, in accordance with the settlement
agreement.
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b.
Position of the Respondent
9.
According to the Respondent, it faces financial difficulties caused by COVID-19 and was
therefore requesting, on 6 May 2021, a grace-period of 30 days to pay its debt.
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
10.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as Chamber
or DRC Judge) analysed whether she was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on 26 February 2021
and submitted for decision on 16 June 2021. Taking into account the wording of art. 21 of
the January 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 DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22
lit. b of the Regulations on the Status and Transfer of Players (edition February 2021), she
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player and a club.
12.
Furthermore, the DRC judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she 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 26 February 2021, the
aforementioned 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 she 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
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
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REF FPSD-1888
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 she 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 DRC Judge moved to the substance of the
matter, and took note of the fact that the parties dispute the consequences arising from a
settlement agreement.
17.
In this context, the DRC Judge acknowledged that it her task was to establish if the Claimant
is entitled to the claimed amounts in relation to the settlement agreements as well as the
interest/penalty.
18.
On account of the above, the DRC Judge took notice that the DRC had already decided
that the player is entitled to a certain amount in its decision in the matter with the Ref. no.
19-02268. Furthermore, the DRC Judge duly note that the parties concluded a settlement
agreement, according to which the Respondent undertook to pay a total amount of USD
60,000 in two instalments.
19.
Furthermore, the DRC Judge took notice that it remained undisputed that such amount
remained outstanding up to date.
20.
The Respondent argued that it is facing financial difficulties in relation to the COVID-19
pandemic and it requested some time to pay its dues.
21.
Having said that, the DRC Judge wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at
providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020,
FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides
clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.
22.
For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as
the FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any
specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary or a debtor to fulfil its contractual obligations.
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REF FPSD-1888
23.
In this context, the DRC Judge considered 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.
24.
On account of the aforementioned considerations, the DRC Judge established that the
Respondent failed to remit to the Claimant the total amount of USD 60,000 corresponding
to the two instalments of the settlement agreement.
25.
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 outstanding
remuneration in the total amount of USD 60,000.
26.
Subsequently, the DRC Judge focussed her attention on the penalty clause contained in art.
3 of the settlement agreement, which established that: “In the event the First Party [CS
Sfaxien] fails to pay any of the above-mentioned instalments at their specific dates: (i) the
First Party [CS Sfaxien] shall be obliged to pay to the Second Party [Player] an additional
delay penalty at 15% p.a. of the outstanding amounts as of the above-mentioned dates of
payment until effective date of final payment, and (ii) a default interest at 5% p.a. of the
outstanding amounts as of the above-mentioned dates of payment until the effective date
of final payment, which shall be applied in addition and on top of the 15% p.a. delay
penalty.”
27.
The DRC Judge pointed out that said clause appears to be a hidden interest clause
establishing a yearly interest of 20%. The DRC Judge concluded that such interest clause
was explicitly and contractually agreed upon between the parties and is therefore not per
se inapplicable.
28.
Nevertheless, in line with the jurisprudence of the Dispute Resolution Chamber and the
Players’ Status Committee, as well as CAS jurisprudence and in accordance with Swiss Law,
the DRC Judge had no other option but to conclude that a yearly interest of 20% was
disproportionate, and decided to reduce it to a rate of 18% p.a.
ii. Consequences
29.
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 outstanding
remuneration in the total amount of USD 60,000 plus 18% interest p.a. as of the respective
due dates.
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iii. Compliance with monetary decisions
30.
Finally, taking into account the consideration under number 12. 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.
31.
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.
32.
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.
33.
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.
34.
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
35.
The DRC Judge 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 DRC Judge decided that
no procedural costs were to be imposed on the parties.
36.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Aymen Hussein Ghadhban, is partially accepted.
2.
The Respondent, CS Sfaxien, has to pay to the Claimant, the following amounts:
- USD 30,000 plus 18% interest p.a. as from 31 December 2020 until the date of effective
payment;
- USD 30,000 plus 18% interest p.a. as from 31 January 2021 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 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 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 paid by the end of
the of the three entire and consecutive registration periods.
6. 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.
7. This decision is rendered without costs.
For the DRC Judge:
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:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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