Labour Disputes
Texto da decisão
REF. FPSD-9587
Decision of the
Dispute Resolution Chamber
passed on 4 May 2023
regarding an employment-related dispute concerning the player Amor
Layouni
COMPOSITION:
Omar ONGARO (Italy), Deputy Chairperson
Tomislav KASALO (Croatia), Member
Calum BEATTIE (Scotland), Member
CLAIMANT:
Amor Layouni, Sweden and Tunisia
Represented by Monteneri Sports Law
RESPONDENT:
Pyramids FC, Egypt
Represented by Mueller & Paparis
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REF. FPSD-9587
I. Facts of the case
1.
On 15 January 2021, the Swedish and Tunisian player, Amor Layouni (hereinafter: the player
or the Claimant), and the Egyptian club, Pyramids FC (hereinafter: the club or the
Respondent), concluded an Agreement in connection with the employment relationship
previously maintained between them (hereinafter: the Agreement).
2.
The recitals section of the Agreement read as follows:
“(A) The player and the club entered into an employment agreement dated 17th
September 2019 which is due to expire at the end of 2021/22 season (three seasons) and
a Rescheduling Contract for Season 2020/2021 Salaries dated 1 December 2020
(hereinafter referred to collectively as the ‘Employment Agreements’).
(B) The player wishes to complete a permanent transfer to Válerenga Fotball Elite (the
‘Transferee Club’) and the club is willing to use reasonable endeavours to complete the
permanent transfer of the Player to the Transferee Club.
(C) It is intended that the Employment Agreements shall be terminated with effect from
the date on which the Player’s permanent transfer to the Transferee Club is completed
(the ‘Termination Date’)”.
3.
Furthermore, clause 2.1 of the Agreement read inter alia as follows:
“(b) An agreed compensation for the termination (‘Agreed Compensation’) shall be paid
to the Player. The Agreed Compensation amounts to USD 300.000 (three hundred
thousand) net that shall be fully paid to the Player no later than 2022-12-31.
[...]
(c) The Player has the right to receive the full transfer fee paid by the Transferee club
accordingly to 2.1.D.
(d) The Transferee Club pays to Pyramids a total amount of USD 450.000 (USD four
hundred fifty thousand) (‘Transfer Fee’) at the following dates:
USD 150.000 (USD one hundred fifty thousand) 2021-05-30
USD 150.000 (USD one hundred fifty thousand) 2022-05-30
USD 150.000 (USD one hundred fifty thousand) 2023-05-30
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(e) The Club shall pay the Player the Transfer Fee paid by the Transferee Club no later
than ten (10) business days after receiving every instalment.
(f) The Transferee club is responsible for providing the Club and the Player with a proper
receipt of every payment at the paydates of: 30th May 2021, 2022 and 2023.
(g) If the Transferee club is late with its payment, the Club shall not have to pay the Player
until the amount has been received by the Transferee Club.
(h) The total payments to be made will not exceed USD 750.000 (USD seven hundred fifty
thousand) and shall be fully paid before the end of June 2023. By receiving from the Club
the Agreed Compensation (which is USD 300.000), the Player acknowledges that he has
no right to claim the Club with any claim or amount derived from Employment
Agreements.
(i) The Club cannot be responsible or held accountable if the Transferee Club don’t follow
their obligations for paying the USD 450.000 (USD four hundred fifty thousand). In other
words, it is agreed between the Parties that the Club shall not be responsible for any
delay or default made by the Transferee Club in paying the Transfer Fee. The Transfer Fee
will not be due as long as the Transferee Club fails to comply with its obligations.
(j) All payments within this agreement is to be considered as payments for the players
services during his playing time in the club, from the date of 19th September 2019 until
the termination date”.
4.
By correspondence dated 10 January 2023, the player put the club in default of payment of
USD 300,000 net under the Agreement.
II. Proceedings before FIFA
5.
On 13 March 2023, the player filed the claim at hand before FIFA for overdue payables.
6.
In his claim, the player argued that the club should have paid him USD 300,000 net by 31
December 2022, however failed to timely do so. Consequently, he requested to be awarded
said overdue amount plus 5% interest p.a. as from 1 January 2023 until the effective
payment.
7.
On 17 April 2023, the club filed its reply to the claim.
8.
First and foremost, it challenged the admissibility of the claim on the grounds that the
signatures of the player included in the Power of Attorney and in the Bank Account
Registration Form (BARF) were different than the one added to the Agreement.
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9.
As to the substance, the club confirmed that the USD 300,000 claimed by the player were
not paid. However, it referred to clause 2.1 lit. h) of the Agreement and argued that the
parties agreed upon “an additional grace period latest until the end of June 2023” for the
payment. In other words, the club stated that the claim of the player is premature insofar
as the quantum claimed is not yet overdue.
10. In parallel, the club also disputed the receipt of the default notice allegedly sent by the
player on 10 January 2023. It pointed out, in this respect, that the email address used by
the player is no longer available in the Transfer Matching System (TMS).
11. The requests for relief of the club were as follows, quoted verbatim:
“Due to the abovementioned explanations the FIFA is requested to fully reject the requests
for relief of the Claimant or, with other words, to establish that the Respondent did not
breach the Agreement signed with the Claimant, and, therefore, not condemn the
Respondent to pay to the Claimant the amount of USD 300,000 with the requested default
interest, under imposition of the procedural costs on the Claimant”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 13 March 2023 and submitted
for decision on 4 May 2023. Taking into account the wording of art. 34 of the March 2023
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.
13. Subsequently, the members of the Chamber 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), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Swedish/Tunisian
player and an Egyptian club.
14. At this point, the DRC highlighted that the club challenged the admissibility of the claim of
the player by arguing that his signatures in the Power of Attorney and in the BARF were not
consistent with the ones added to the other documentation on file. Nevertheless, the
Chamber was firm to determine that such objection could not succeed firstly because it is
for the FIFA general secretariat to assess whether a claim is complete, and to request any
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REF. FPSD-9587
additional information at any time during a proceeding (cf. art. 18 par. 2 and art. 23 par. 2
of the Procedural Rules).
15. Secondly and while carefully the case file, the DRC considered that there was not any
reason capable of suggesting that the player was not represented by the empowered
lawyers, who were also in possession of his personal data and supporting documentation.
The Chamber was furthermore comforted by noting that the bank account indicated in the
BARF is held by the player himself.
16. On this note, the DRC decided that objection of the club should be rejected, and the claim
of the player is admissible.
17. Subsequently, the Chamber analysed 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 2 of the Regulations on the Status and Transfer of Players (March 2023 edition), and
considering that the present claim was lodged on 13 March 2023, the October 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
18. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the TMS.
c. Merits of the dispute
19. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised 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.
i. Main legal discussion and considerations
20. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for outstanding remuneration
lodged by the player against the club in connection with the Agreement.
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REF. FPSD-9587
21. The Chamber acknowledged that it remained undisputed between the parties that the USD
300,000 in dispute were not paid by the club to the player. However, the club argues that
such amount was not yet overdue in line with the wording of clause 2.1, lit. h) of the
Agreement.
22. In this context, the DRC turned the analysis of the Agreement and, in particular, of the
abovementioned provision. In doing so, the Chamber observed that such document
established inter alia the following:
•
The employment relationship binding the player to the club would be terminated
and the player’s services would be subsequently transferred to a second club (i.e.,
Valerenga Fotball Elite);
•
In consideration of the acquisition of the player’s rights, Valerenga Fotball Elite
would pay the club a transfer fee of USD 450,000 net in 3 instalments of USD
150,000 net each, due on 30 May 2021, 30 May 2022, 30 June 2022; and
•
Out of such transfer fee, USD 300,000 net (i.e., the first two instalments of the
transfer fee) would be paid by the club to the player until no later than 31
December 2022, provided that the corresponding amount was indeed received
from Valerenga Fotball Elite. Only in case the latter failed to pay the transfer fee,
the club’s obligation towards would also be re-scheduled.
23. In light of the above and having carefully analysed the Agreement, the DRC considered that
its content is clear to establish that the only reason capable of “excusing” the club of the
payment to the player within the agreed deadline (i.e., 31 December 2022) was the lack of
payment of the transfer fee by Valerenga Fotball Elite. In particular, while analysing the due
dates and the quantum agreed upon by the parties, it is also unequivocal for the Chamber
that such lack of payment only referred to the two first instalments of the transfer fee due
respectively in May 2021 and May 2022, amounting to USD 300,000.
24. Against this background, the Chamber outlined that the club confirmed its default and
limited itself to refer to the wording of clause 2.1, lit. h) of the Agreement, which, in the
DRC’s opinion, does only make reference to the final deadline for payment by Valerenga
Fotball Elite to the club of the third instalment of the transfer fee – and not to the payment
by the club to the player of the amount mentioned in clause 2.1, lit. b).
25. Consequently, as a potential default by Valerenga Fotball Elite was not – at any time – raised
by the club, the DRC assumed that the amounts were paid, hence should be forwarded to
the player. In this respect, the Chamber also stressed that the club bore the burden of
proof to argue (and properly demonstrate) that it had not received its share from Valerenga
Fotball Elite, however, by failing to do so, it could not at a later stage be excused of
complying with its own financial duties.
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REF. FPSD-9587
26. In conclusion, the DRC decided that the reasons invoked by the club for non-payment were
not valid, hence it should pay the amount of USD 300,000 net to the player plus 5% interest
p.a. as from 1 January 2023 until the date of effective payment.
27. For the sake of completeness, the Chamber was also observant of the club’s allegation
regarding the lack of receipt of the default notice by the player. Nevertheless, the DRC
wished to clarify that, even if such email was in fact not delivered, the club would still be
liable to comply with its financial duties in line with the principle of pacta sunt servanda.
Consequently, its position to this extent was immaterial to the outcome of the case.
ii. Compliance with monetary decisions
28. Finally, taking into account the applicable Regulations, the Chamber 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 DRC 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.
30. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
31. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
32. The DRC 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. The Chamber 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,
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REF. FPSD-9587
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
34. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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REF. FPSD-9587
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Amor Layouni, is accepted.
2.
The Respondent, Pyramids FC, must pay to the Claimant USD 300,000 net as outstanding
remuneration plus 5% interest p.a. as from 1 January 2023 until the date of effective
payment.
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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REF. FPSD-9587
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 Governing the Football
Tribunal).
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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