Labour Disputes
Texto da decisão
REF FPSD-7649
Decision of the
Dispute Resolution Chamber
passed on 7 December 2022
regarding a dispute concerning the transfer of the player Samuel Kwame
Owusu
BY:
Jorge GUTIERREZ (Costa Rica)
CLAIMANT:
Samuel Kwame Owusu, Ghana
Represented by Pedro Macieirinha
RESPONDENT:
Al Fayha, Saudi Arabia
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I.
Facts of the case
1.
On 18 August 2018, the Ghanaian player, Samuel Kwame Owusu (hereinafter: the Claimant),
and the Saudi Arabian club, Al Fayha (hereinafter: the Respondent) signed an employment
contract (hereinafter: the contract), valid as from 18 August 2019 until 17 August 2022.
2.
On 7 July 2022, the Claimant and the Respondent concluded a termination agreement
(hereinafter: the termination agreement), by means of which they agreed to mutually
terminate the contract.
3.
In accordance with article 5 of the termination agreement, the Respondent undertook to
pay to the Claimant an amount of USD 369,920, payable as follows:
•
•
•
•
•
USD 73,984 to be paid immediately after signing this agreement (“first instalment”)
USD 73,984 to be paid on 31 July 2022 (“second instalment”)
USD 73,984 to be paid on 31 August 2022 (“third instalment”)
USD 73,984 to be paid on 30 September 2022 (“fourth instalment”)
USD 73,984 to be paid on 31 October 2022 (“fifth instalment”)
4.
Article 7 of the termination agreement stipulated the following:
“The parties have agreed to respect the date of the payments mentioned in the article 5 which is
dues to be paid by the first party to the second party and on the event of failure of the payment
on the respective dates more than 10 days, the parties agreed to set a 5% as a penalty on the
installments as an additional due payment.”
5.
On 10 August 2022, the Claimant put the Respondent in default and requested payment of
the amount of USD 73, 984 corresponding to the outstanding second instalment.
6.
On 15 September 2022, the Claimant sent a second default notice to the Claimant time
requested payment of the amount of USD 147,778 corresponding to the outstanding
second and third instalment, granting it a deadline of 10 days, however to no avail.
II. Proceedings before FIFA
7.
On 27 September 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
8.
According to the Claimant, the Respondent failed to comply with its contractual financial
obligations.
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9.
The requests for relief of the Claimant, were that the Respondent pay him the following:
-
USD 54 corresponding to the balance of the second instalment
USD 3,699.20 as penalty for the late penalty of the second instalment
USD 73,984 corresponding to the third instalment
USD 3,699.20 as penalty for the late penalty of the third instalment
plus, interest at a rate of 5% on the above amounts from the due dates until effective
payment.
10. Additionally, the Claimant requested that sporting and disciplinary sanctions be imposed
on the Respondent.
b. Position of the Respondent
11. In its reply, the Respondent, mentioned that it paid the following amounts to the Claimant:
-
The first instalment of USD 73,984 on 17 July 2022
The second instalment of USD 73,984 on 15 September 2022
12. The Respondent further mentioned that due to some financial difficulties, “the club failed to
pay the third instalment.”
13. Additionally, the Respondent disagreed with the Claimant’s entitlement to the amount of
USD 7,398 as “interest” and indicated that art.12 bis is not applicable.
14. In conclusion the Respondent requested “to reject the claim of the player for the interest and
for sportive sanctions.”
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as 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
27 September 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.
2.
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 Ghanaian player and a Saudi Arabian club.
3.
Subsequently, 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 Players (October 2022 edition) and
considering that the present claim was lodged on 27 September 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
4. 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
5.
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.
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i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter and took note that the parties strongly dispute the total amount that was
outstanding and due to the Claimant as per the termination agreement concluded between
the parties on 7 July 2022, namely: (i) USD 54 corresponding to the balance of the second
instalment; (ii) USD 3,699.20 as penalty for the late penalty of the second instalment; (iii)
USD 73,984 corresponding to the third instalment, and (iv) USD 3,699.20 as penalty for the
late penalty of the third instalment
7.
In this context, the Single Judge acknowledged that his task was to determine whether the
amounts claimed by the Claimant had indeed already fallen due and were to be paid by
the Respondent.
8.
The Single Judge acknowledged, that it remained undisputed between the parties that the
Respondent failed to comply with the payment of all amounts specified on the agreed dates
as detailed in the termination agreement.
9.
The Single Judge noted that in its submission, the Respondent did not contest that the
amounts as claimed are due to the Claimant, in fact it confirmed that it failed to pay the
amount of USD 73,984 corresponding to the third instalment due to financial difficulties it
experienced.
10. In this respect, the Single Judge highlighted that the Respondent had not invoked such
circumstances to the Claimant, moreover it had failed to reply to the default notice sent by
the Claimant.
11. In this context, the Single Judge mentioned 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.
12. In view of all the above, bearing in mind its extensive jurisprudence according to which
financial difficulties cannot be held as a valid reason to the non-payment of contractually
agreed payments, the Single Judge decided to reject the argumentation put forward by the
Respondent in its defence.
13. Subsequently, the Single Judge focused his attention on the penalty clause detailed article 7
of the termination agreement, which stipulates that, “ the parties have agreed to respect the
date of the payments mentioned in the article 5 which is dues to be paid by the first party to the
second party and on the event of failure of the payment on the respective dates more than 10
days, the parties agreed to set a 5% as a penalty on the installments as an additional due
payments.”
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14. The Single Judge took note that the Respondent in its reply argued the said penalty clause
is excessive and disproportionate. Additionally, the Single Judge observed that the
Respondent disagreed that the Claimant was entitled to the contractual penalty as claimed.
15. In this context, the Single Judge referred to its constant jurisprudence, in accordance with
which penalty clauses may be freely entered into by the parties and may be considered
acceptable, in the event that the pertinent written clause meets certain criteria, such as
proportionality and reasonableness. The Single Judge further 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 be taken into consideration.
16. In the matter at hand, the Single Judge remarked that in article 7 of the agreement, the
Claimant and Respondent indeed agreed to the applicability of the specific penalty in the
event of failure of payment within 10 days from the specific due date.
17. After having analysed the said clause, the Single Judge came to the conclusion that a
penalty of 5% on the outstanding overdue amount is – given the particularities of the
matter at hand – to be considered reasonable and proportionate and thus, can be
awarded.
18. Finally, taken all of the above into account the Single Judge concluded that the Respondent
was indeed in arrears of its financial obligations as per the termination agreement and is
thus to be held liable for the consequences thereof.
ii. Consequences
19. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of the termination agreement committed by the
Respondent.
20. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the following
amounts:
-
USD 54 as balance of the second instalment
USD 73,984 as outstanding third instalment
21. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above
amounts as from the respective due dates.
22. Additionally, the Single Judge decided that the Claimant is liable to pay to the Claimant the
amount of USD 7,398,40 as contractual penalty on the basis of the late payment of both
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the second and the third instalment as per article 7 of the termination agreement.
Moreover, in accordance with the well-established jurisprudence of the Chamber, the
Single Judge decided that no interest shall be applied on the said contractual penalty.
iii. Art. 12bis of the Regulations
23. In continuation, bearing in mind the foregoing considerations, the Single Judge referred to
art.12bis par. 2 of the Regulations, which stipulates that any club found to have delayed a
due payment for more than 30 days without a prima facie contractual basis may be
sanctioned in accordance with art. 12bis par. 4 of the Regulations. In this respect, the Single
Judge confirmed that the Respondent failed to comply with its financial obligations in line
with the contract, without a prima facie justification, and was duly notified of the
contractual breach by the Claimant, who granted the Respondent at least 10 days to cure
its default, to no avail.
24. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent.
25. Moreover, the Single Judge referred to art. 12bis par. 6 of the Regulations, which
establishes that a repeated offence will be considered as an aggravating circumstance and
lead to a more severe penalty.
26. In this context, the Single Judge highlighted that over the past two years, under case ref.no.
FPSD-4240, the Respondent had already been found to have delayed a due payment for
more than 30 days without a prima facie contractual basis. Bearing in mind the aforesaid
and taking into account that this is a second offense of the Respondent in the past two
years the deciding body decided to impose a reprimand on the Respondent.
iv. Compliance with monetary decisions
27. 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 his 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.
28. 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.
29. 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
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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.
30. 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.
31. 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
32. 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, the Single Judge decided that no procedural costs were to be
imposed on the parties.
33. Likewise, and 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.
34. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
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Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Samuel Kwame Owusu, is accepted.
2.
The Respondent, Al Fayha, has to pay to the Claimant, the following amount(s):
(a) USD 74,038 as outstanding amount plus 5% interest p.a. as from the respective due
dates until the date of effective payment as follows:
-
On the amount of USD 54 as from 1 August 2022
On the amount of USD 73,984 as from 1 September 2022
(b) USD 7,398,40 as contractual penalty.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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. 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.
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 made by the
end of the three entire and consecutive registration periods.
5.
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.
6.
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).
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