DRC Overdue Payables
Texto da decisão
REF. FPSD-14232
Decision of the
Dispute Resolution Chamber
passed on 15 May 2024
regarding an employment-related dispute concerning
the player Adam Maher
BY:
Frans de Weger (the Netherlands), Chairperson
Mario Flores Chemor (Mexico), member
Alexandra Gomez Bruinewoud (Uruguay & the Netherlands), member
Dana Mohamed Al-Noaimi (Qatar), member
Roy Vermeer (the Netherlands), member
CLAIMANT:
Adam Maher, the Netherlands
Represented by Brantjes Advocaten
RESPONDENT:
Damac FC, Saudi Arabia
Represented by Mr Islam Hisham
pg. 2
REF. FPSD-14232
I. Facts of the case
1.
On 10 July 2022, the Dutch player Adam Maher (hereinafter: Claimant or player) and the
Saudi Arabian club Damac FC (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: Contract) valid as from the date of signature until 9 July 2025.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant inter
alia a monthly salary of USD 125,000 net.
3.
On 28 January 2024, the Claimant, the Respondent and the Qatari club Al Wakra
(hereinafter: the Loan Club) concluded a loan agreement pursuant to which the Claimant
would temporarily be transferred to the Loan Club, as from 31 January 2024 until
30 June 2024 (hereinafter: the Loan Agreement).
4.
Pursuant to the Loan Agreement, the Respondent and the Loan Club undertook to share
the Claimant’s remuneration, with the Respondent undertaking to pay an amount of
USD 65,000 net pet month, and the remaining USD 60,000 net to be paid by the Loan Club.
5.
On 18 January 2024, the Claimant sent the Respondent an e-mail, stating that he requested
further information as to the beginning of training, as well as pointing out that he was owed
2.5 salaries.
6.
On 4 March 2024, the Claimant allegedly put the Respondent in default of his outstanding
salaries.
7.
On 8 March 2024, the Claimant put the Respondent in default and requested payment of
USD 315,000, i.e. the salaries between December 2023 and February 2024, setting a
10 days’ time limit in order to remedy the default.
8.
On 25 March 2024, the Respondent replied to the Claimant, stating that it believes that
there are discrepancies between the calculations of the Claimant and the actual arrears,
inviting the latter to a meeting to formally discuss.
9.
On the same day, the Claimant replied and informed the Respondent that there was no
discrepancy and if he did not receive payment by 27 March 2024, he would lodge a claim
for overdue payables before FIFA.
II. Proceedings before FIFA
10. On 28 March 2024, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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REF. FPSD-14232
a. Position of the Claimant
11. The Claimant lodged a claim for overdue payables and requested a total amount of
USD 255,000 net.
12. In particular, the player argued that the Respondent failed to pay the salary for January
2024 – USD 125,000 net, as well as the salaries for February 2024 and March 2024 –
USD 65,000 net each, pursuant to the Loan Agreement.
13. The Claimant specified that, despite having put the Respondent in default, the latter failed
to comply with its financial obligations.
14. Consequently, the Claimant requested overdue payables of USD 255,000 net, plus interest
as from the respective due dates.
b. Position of the Respondent
15. In its reply, the Respondent acknowledged the non-payments, outlined however that the
Claimant acted in bad faith by refusing to accept an invitation to a meeting to discuss any
“discrepancies” in the claimed amounts.
16. Furthermore, the Respondent argued that not all amounts in dispute have been overdue
for more than 40 days (sic), thus rendering art. 12bis RSTP inapplicable concerning the last
instalment of USD 65,000 for the month of March 2024.
17. The Respondent equally outlined that the Claimant did not specify the interest rate which
should be paid, meaning that no interest should be paid at all.
18. Consequently, the Respondent requested for the claim to be rejected in its entirety.
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REF. FPSD-14232
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 28 March 2024 and submitted
for decision on 15 May 2024. 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.
20. 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 February 2024 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 Dutch player and
a Saudi Arabian club.
21. 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 (February 2024 edition), and
considering that the present claim was lodged on 28 March 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
22. 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 Transfer Matching System (TMS).
c. Merits of the dispute
23. 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.
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REF. FPSD-14232
i. Main legal discussion and considerations
24. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the Respondent’s
obligation to honour certain financial obligations as stipulated under the Contract.
25. In particular, the Claimant asserted that the Respondent failed to remit three salaries of
USD 125,000 net, USD 65,000 net and USD 65,000 net respectively – corresponding to the
months of January, February and March 2024.
26. Equally, the Chamber took note of the line of argument submitted by the Respondent,
according to whom, despite acknowledging the non-payment of the amounts in dispute,
there was a valid justification to withhold such payment, hat because the Claimant refused
to find an amicable solution to the matter, the claim should be dismissed. Equally, the
Respondent pointed out that, as the last instalment under the Loan Agreement was not yet
overdue for 40 days, art. 12bis RTSP should not apply, and the amount is not yet payable.
27. In this context, the Chamber acknowledged that it its task was to determine whether or not
the payments had remained outstanding for a valid reason, and, if not, what the
consequences of such unlawful non-payment may be.
28. With this in mind, the Chamber went on to consider the matter as to its merits and took
note of the justification provided by the Respondent as to the non-payment.
29. The Chamber hereby wished to point out that a player’s refusal to attend a “meeting to
formally discuss any discrepancies” in perceived overdue amounts cannot be used as a
valid justification to depart from the principle of pacta sunt servanda – i.e. discharging the
Respondent from its obligation to pay the contractually stipulated salaries.
30. This was more so the case considering that no proof of payment had been adduced by the
Respondent (either in the correspondence between the parties or the submission forming
part of the present proceedings) to corroborate said line of argument that there was any
discrepancy.
31. Lastly, and for the sake of completeness, the Chamber wished to stress that the time limits
outlined in art. 12bis were of relevance only to the extent that the sanctions contained
therein would be applicable (rather than the duty to comply with financial obligations
under the relevant contract would be discharged or suspended).
32. Consequently, as the amounts in dispute were established as having remained unpaid, the
Chamber unanimously decided that the Claimant shall be entitled to receive as outstanding
remuneration an amount of USD 255,000 net, pursuant to the principle of pacta sunt
servanda.
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REF. FPSD-14232
33. Furthermore, in accordance with the Claimant’s request and the jurisprudence of the DRC,
the latter decided to award the Claimant the following interest applicable on the above
amount:
-
On the amount of USD 125,000 net, 5% p.a. as from 1 February 2024 until the date of
effective payment;
-
On the amount of USD 65,000 net, 5% p.a. as from 1 March 2024 until the date of
effective payment;
-
On the amount of USD 65,000 net, 5% p.a. as from 1 April 2024 until the date of
effective payment.
ii. Application of art. 12bis RSTP
34. In continuation, the Chamber 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.
35. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, the majority of which had fallen due more than 30 days before, and
granted the club a 10-day deadline to cure such breach of contract.
36. Accordingly, the Chamber confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations were, to a large extent, met in the case at hand.
37. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that this is the 2nd offense by the club within the last two years, the Chamber decided to
impose a reprimand on the club in accordance with art. 12bis par. 4 lit. b) of the
Regulations.
38. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with
art. 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
39. 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
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REF. FPSD-14232
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
40. 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.
41. Therefore, bearing in mind the above, the DRC 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.
42. 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.
43. 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
44. 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,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-14232
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Adam Maher, is accepted.
2.
The Respondent, Damac FC, must pay to the Claimant the following amount(s):
- USD 255,000 net as outstanding remuneration plus interest p.a. as follows;
- 5% interest p.a. over the amount of USD 125,000 net as from 1 February 2024 until the
date of effective payment;
- 5% interest p.a. over the amount of USD 65,000 net as from 1 March 2024 until the date
of effective payment;
- 5% interest p.a. over the amount of USD 65,000 net as from 1 April 2024 until the date
of effective payment.
3.
A reprimand shall be imposed against the Respondent.
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. 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.
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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REF. FPSD-14232
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).
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