DRC Overdue Payables
Texto da decisão
REF. FPSD-12893
Decision of the
Dispute Resolution Chamber
passed on 22 February 2024
regarding an employment-related dispute concerning
the player Gaya Merbah
BY:
Angela Collins (Australia), Single Judge of the DRC
CLAIMANT:
Gaya Merbah, Algeria
Represented by Slim Boulesnam
RESPONDENT:
RCA (Raja Club Athletic), Morocco
Represented by Sport Makers Law Firm
pg. 2
REF. FPSD-12893
I. Facts of the case
1.
On 22 January 2022, the Algerian player Gaya Merbah (hereinafter: the player or the
Claimant) and the Moroccan club Raja Casablanca (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: the contract) valid as from the date of its
signature until the end of the 2024/2025 season in Morocco (in accordance with the
information contained in the Transfer Matching System, the said season will presumably
come to an end on 30 June 2025).
2.
On the same date (albeit dated 20 January 2022), the said parties signed an agreement
(hereinafter: the loan agreement) with the Moroccan club Ittihad Riadhi de Tanger
(hereinafter: IRT) in accordance with which the player was temporarily transferred from the
Respondent to IRT as from the date of its signature and until the end of the 2022/2023
season in Morocco, i.e. until 30 June 2023.
3.
Under clause 2 of the loan agreement, the Claimant, the Respondent and IRT agreed that,
for the duration of the loan agreement, the Respondent would be exempted from
remunerating the player, with the exception of the following 2 obligations, which would
subsist:
4.
-
The Respondent would have to pay to the player the amount of MAD 175,000 by 31
March 2023;
-
The Respondent would have to pay to the player the amount of MAD 275,000 by 30
June 2023.
By means of his notice dated 25 October 2023, the player put the club in default of payment
in the amount of MAD 450,000 corresponding to the instalments of MAD 175,000 and MAD
275,000 that the club undertook to pay to the player during the period he was on loan with
IRT, thereby granting the club a deadline of 10 days to cure its breach.
II. Proceedings before FIFA
a. Position of the Claimant
5.
On 1 December 2023, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration in the total amount of MAD 450,000, plus 5%
interest p.a. as from the respective due dates, corresponding to the instalment of MAD
175,000 payable by 31 March 2023 and to the instalment of MAD 275,000 payable by 30
June 2023.
pg. 3
REF. FPSD-12893
6.
In his claim, the player argued that despite having contractually agreed that the
Respondent would pay to the player the amount of MAD 450,000 during the period the
player was on loan with IRT, the Respondent failed to comply with its financial obligations
towards him even after having been put in default of payment.
b. Position of the Respondent
7.
In its reply, the Respondent acknowledged not having paid the amount of MAD 450,000 to
the player and argued that “the board of directors of the Club has started to face a lot of
challenges, as there has been a significant decrease in the technical level of the team and the
administrative level of the management in the Club.”
8.
In this vein, the Respondent held that – in May 2023 – the Board of Directors of the club
resigned and that the club faced a difficult situation which led to the club’ failure in replying
to the player’s default notice. The club argues that the changes in its corporate structure
amounts to a situation of force majeure, as the new Board of Directors – appointed in June
2023 – was not aware of the financial obligations undertaken by the previous management
of the club vis a vis the player.
9.
In this context and while arguing acting in good faith, the Respondent requested the
present case be submitted to mediation cf. art. 26 of the Procedural Rules Governing the
Football Tribunal.
10. Subsidiary to the above, the Respondent requested that the FIFA Dispute Resolution
Chamber shall only order the club to pay to the player the outstanding amount of MAD
450,000 without any default interest.
c. Replica of the Claimant
11. Despite having been invited to present his comments as to the reply of the club, the player
failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as
the Single 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 1 December 2023
and submitted for decision on 22 February 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.
pg. 4
REF. FPSD-12893
13. 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), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Algerian player
and a Moroccan club.
14. Subsequently, the Single Judge 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 (October 2022 edition) and
considering that the present claim was lodged on 1 December 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
15. 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 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
16. Its 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, 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
17. The foregoing having been established, the Single Judge moved to the substance of the
matter and acknowledged that the player is requesting to be awarded the amount of MAD
450,000 as outstanding remuneration, whose legal basis is found under clause 2 of the loan
agreement, plus 5% interest p.a. as from the respective due dates; whereas the
Respondent, which acknowledged owing the Claimant the requested principal amount,
requested the present case be submitted to mediation insofar as the reasons for the nonpayment hold an extraordinary nature (alleged changed of the club’s Board of Directors)
pg. 5
REF. FPSD-12893
and, subsidiary, requested the Football Tribunal not to order the club to pay any default
interest on the principal amount due.
A. Mediation process requested cf. art. 26 of the Procedural Rules:
18. In this respect, the Single Judge noted that – as per art. 26 of the Procedural Rules of the
Football Tribunal (March 2023 edition) – mediation is a voluntary process that can be
initiated upon proposal from the Chairman of the Dispute Resolution Chamber, in casu.
19. Thus, as the Claimant was invited to reply to the Respondent’s proposal to submit the
present dispute to mediation and failed to reply thereto, the Single Judge determined that
the Claimant has not accepted the present case to be submitted to mediation and,
consequently, it has duly been submitted to the Dispute Resolution Chamber for its
consideration and decision.
B. Player’s entitlement to the principal due under the loan agreement: force majeure
situation (?)
20. As it has been acknowledged by the Respondent that it undertook to pay to the player the
amount of MAD 450,000 and that it had not done so, the Single Judge determined that the
Claimant shall be awarded the amount of MAD 450,000 by virtue of application of the legal
principle pacta sunt servanda.
21. As for the Respondent’s argument that the situation the club faced upon the resignation
and new appointment of its Board of Directors, the Single Judge concluded that such
situation cannot be considered as constituting a force majeure scenario, as it is the
obligation of the club to assure that the financial obligations assumed by the club under a
previous management are taken into account and respected by the new management of
the club, as it is part of the club’s due diligence in the exercise of its operative functions.
22. In this respect, the Single Judge wished to underscore that variations of the club’s corporate
structure cannot and should be used by clubs in order to avoid complying with its
contractual obligations vis a vis creditor players.
ii. Consequences
23. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
24. The Single Judge observed that the outstanding remuneration due to the Claimant by the
Respondent amounts to a total of MAD 450,000 (i.e. a first instalment of MAD 175,000 and
a second instalment of MAD 275,000) and, consequently, decided that, in accordance with
the general legal principle pacta sunt servanda, the Respondent is liable to pay to the
Claimant the said amount, which is due as per clause 2 of the loan agreement.
pg. 6
REF. FPSD-12893
25. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the Single Judge decided to award the Claimant interest at
the rate of 5% p.a. on the outstanding amounts as from their respective due dates until the
date of effective payment.
iii. Overdue Payable sanction (art. 12bis of the Regulations)
26. In continuation, 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.
27. To this end, the Single Judge confirmed that the player put the club in default of payment
of the amounts sought, which had fallen due more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
28. Accordingly, the Single Judge 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 was met in the case at hand.
29. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
she has competence to impose sanctions on the club. On account of the above and bearing
in mind that this is the first offense by the club within the last two years, the Single Judge
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
30. In this connection, the Single Judge 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.
iv. Compliance with monetary decisions
31. 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 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.
32. 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.
pg. 7
REF. FPSD-12893
33. 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
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.
34. 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.
35. 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
36. 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.
37. 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.
38. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-12893
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Gaya Merbah, is partially accepted.
2.
The Respondent, RCA, must pay to the Claimant the following amount(s):
- MAD 450,000 as outstanding remuneration plus 5% interest p.a. as follows:
-
On the amount of MAD 175,000, as from 1 April 2023 until the date of effective payment;
-
On the amount of MAD 275,000, as from 1 July 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent cf. art. 12bis of the Regulations on the Status and
Transfer of Players.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
pg. 9
REF. FPSD-12893
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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pg. 10