Dispute Resolution Chamber
Texto da decisão
REF 20-01809
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021,
regarding an employment-related dispute concerning the player Haithem Jouini
COMPOSITION:
Clifford J. Hendel (USA)/(France), Deputy Chairman
Muzammil bin Mohamed (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Haithem Jouini, Tunisia
Represented by Mr. Thomas Spee
RESPONDENT:
Al Ain FC, Saudi Arabia
Represented by Mr. Ali Abbes
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REF 20-01809
I. FACTS OF THE CASE
1. On 20 January 2020, the parties concluded a “contract offer”, valid for 2 seasons.
2. On 25 October 2020, the parties mutually terminated the contract (hereinafter: Termination
Agreement).
3. Article 2 of the Termination Agreement, the Respondent agreed to pay the Claimant the amount
of USD 400,000, as follows:
- USD 100,000, payable on 15 November 2020;
- USD 100,000, payable on 30 January 2021;
- USD 100,000, payable on 30 March 2021;
- USD 100,000, payable on 30 May 2021.
4. Article 3 of the Termination Agreement further states that:
‘3.1: If the Club fails to pay any of the above instalments to the Player by the due dates, the
remainder of the instalments due shall become immediately payable.
3.2: In the event of late payment of the Player's fees, a daily penalty of 1% of the value of the
instalment or the value of the remaining balance due until the date of final payment shall apply.
3.3: The Club shall be liable for all costs and attorneys' fees resulting from any claim for payment
of amounts due (…).’
5. On 23 November 2020, the Claimant sent the Respondent a default notice requesting the
Respondent to pay the amount of USD 400,000 immediately.
6. On 10 December 2020, the Claimant notified the Respondent that he was unilaterally terminating
the Termination Agreement and reserved the right to file a claim with the competent bodies.
7. On 15 December 2020, the Claimant filed a claim against the Respondent before FIFA requesting
the following:
- USD 400,000 as outstanding remuneration in accordance with article 2 of the Termination
Agreement;
- 1% (USD 4,000) as penalty for late payment in accordance with article 3.2 of the Termination
Agreement;
- Sanction the Respondent.
8. In support of his claim, the Claimant submits that despite sending a default notice to the
Respondent, it has still not complied with its contractual obligations in accordance with the
Termination Agreement.
9. As a result of this non-compliance, the Claimant adds he was forced to unilaterally terminate the
agreement between the parties and request immediate payment of the outstanding amounts.
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REF 20-01809
10. As a result, the Claimant requests that he be awarded USD 400,000 as the outstanding
remuneration and a 1% penalty fee on the amount of USD 400,000, in accordance with the
Termination Agreement.
11. The Respondent in its response confirms that the parties did sign a Termination Agreement
according to which it agreed to pay USD 400,000 to the Claimant.
12. However, the Respondent adds that due to the COVID-19 pandemic, it was not in a position to
respect the deadlines.
13. The Respondent adds that the Claimant did not respect the requirements of article 12bis as he
did not send a default notice for the first instalment or submit bank details for payment.
According to the Respondent, the Claimant simply sent a default notice 8 days after the first
instalment was due, requesting payment of the total amount of USD 400,000, plus a 1% penalty
fee.
14. As a result, the Respondent submits that the Claimant did not grant it at least 10 days to comply
in accordance with article 12bis and states that the Claimant’s request for the first three
instalments was premature.
15. In regards to the late payment penalty, the Respondent submits that the amount of this
compensation is clearly excessive and disproportionate, as it would correspond to an interest rate
of 365% per year, i.e. USD 1,460,000. This amount is approximately 4 times higher than the
USD 400,000 claimed by the Claimant.
16. In conclusion, the Respondent submits that it only owes the Claimant the amount of USD
100,000 that was payable on 15 November 2020 and requests to reject the Claimant’s request
for the penalty fee.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as `the Chamber or DRC`)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the Claimant’s claim was lodged on 15 December 2020 and was decided on 3 June 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.
2. Subsequently, the DRC referred to art. 3 par. 1 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 October 2020), it 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.
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REF 20-01809
3. Furthermore, the DRC analyzed 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 par. 2 of the
Regulations on the Status and Transfer of Players (edition February 2021), and considering that
the present claim was lodged on 15 December 2020, the October 2020 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
4. The competence of the DRC and the applicable regulations having been established, the DRC
entered into the substance of the matter. Subsequently, the DRC continued by acknowledging
the above-mentioned facts as well as the documentation contained in the file in relation to the
substance of the matter. However, the DRC emphasized 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.
5. Entering into the substance of the matter at hand, the DRC first of all acknowledged that on 20
January 2020, the parties concluded a “contract offer”, valid for 2 seasons and that on 25
October 2020, the parties mutually terminated the contract.
6. Furthermore, the DRC noted that in accordance with the termination agreement, the Claimant
was entitled to a total amount of USD 400,000 payable in four instalments of USD 100,000 each.
7. Additionally the Chamber also noted that in accordance with article 3.2 of the termination
agreement “in the event of late payment of the Player's fees, a daily penalty of 1% of the value
of the installment or the value of the remaining balance due until the date of final payment shall
apply”.
8. Having recalled the above, the Chamber observed that, the Claimant, in his claim lodged on 15
December 2020, stated that the Respondent did not respect the terms of the termination
agreement and as a result submitted that he be awarded USD 400,000 as the outstanding
remuneration and a daily penalty of 1% on the amount of USD 400,000, in accordance with the
termination agreement.
9. In continuation, the DRC took note of the Respondent’s submission, it was not in a position to
respect the deadlines due to the COVID-19 pandemic and that the Claimant did not respect the
requirements of article 12bis as the request for the 1st three instalments was premature.
10. Additionally, the DRC noted the Respondent’s submission that the daily penalty amount
requested by the Claimant is “clearly excessive and disproportionate”, as it would correspond to
an interest rate of 365% per year, i.e. USD 1,460,000 which is 4 times higher than the USD
400,000 claimed by the Claimant.
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REF 20-01809
11. In this regard, the DRC acknowledged that its task was to determine whether in accordance
with the provisions of the termination agreement, the amount of USD 400,000 became payable
immediately and if in addition to that, the Claimant is entitled to the penalty for late payment as
indicated in article 3.2 of the termination agreement.
12. With the above in mind and after a careful analysis of the termination agreement, the Chamber
noted that in accordance with article 3.1 of the termination agreement, the total amount of USD
400,000 became payable immediately as a result of the Respondent’s failure to make payment
of the first instalment of USD 100,000 that was due on 15 November 2020.
13. The Chamber concluded that the Claimant was entitled to the amount of USD 400,000 in
accordance with the termination agreement.
14. In continuation, the Chamber turned its attention to the Claimant’s request for a daily penalty of
1% on the amount of USD 400,000, in accordance with the termination agreement. In this
regard, the Chamber agreed that a daily interest rate of 1% on the amount of USD 400,000
would indeed be excessive and disproportionate, as it would correspond to an interest rate of
365% per year.
15. With the above in mind and in line with the well-established jurisprudence of the DRC and PSC,
the DRC decided to award the Claimant 18% interest p.a. on the amount of USD 400,000 as of
the date that the first instalment became payable (15 November 2020).
16. Furthermore, taking into account the consideration under number II./3. above, the DRC referred
to par.1 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.
17. In this regard, the DRC pointed out 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 and for the maximum duration
of three entire and consecutive registration periods.
18. Therefore, bearing in mind the above, the Chamber decided that, in the event that the
Respondent does not pay the amount due to the Claimant within 45 days as from the moment
in which the Claimant, following the notification of the present decision, communicates the
relevant bank details to the club, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the club in accordance with art. 24bis par. 2 and 4 of the Regulations.
19. Finally, the Chamber 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. 3
of the Regulations.
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REF 20-01809
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1. The claim of the Claimant, Haithem Jouini, is partially accepted.
2. The Respondent, Al Ain FC, has to pay the Claimant USD 400,000 as outstanding remuneration,
plus 18% interest p.a. on the amount of USD 400,000 as of 15 November 2020 until the date
of effective payment.
3. Any further claim lodged by the Claimant is rejected.
4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amounts as per point 2. above.
5. The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6. In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF 20-01809
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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