Labour Disputes
Texto da decisão
REF. FPSD-8540
Decision of the
Dispute Resolution Chamber
passed on 26 April 2023
regarding an employment-related dispute concerning
the player Jean Mousté
BY:
Dana Mohamed Al-Noaimi (Qatar), Single Judge
CLAIMANT:
Jean Mousté, Guinean Republic
Represented by Elite Law
RESPONDENT:
Al-Diwania, Iraq
Represented by Ammar Mohamed
pg. 2
REF. FPSD-8540
I. Facts of the case
1.
The parties to this dispute are the Guinean player Jean Mousté (hereinafter: the player or
the Claimant) and the Iraqi club Al-Diwaniya SC (hereinafter: the club or the Respondent).
2.
Following a dispute between the parties, on 8 March 2022 the FIFA Dispute Resolution
Chamber issued a decision with reference FPSD-4867 (hereinafter: the Decision), pursuant
to which inter alia the Respondent was ordered to pay the following:
-
USD 15,000 as outstanding remuneration plus 5% interest p.a. as from 29 September
2021 until the date of effective payment;
USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 2 November 2021
until the date of effective payment;
USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 2 December 2021
until the date of effective payment;
USD 1,097 as outstanding remuneration plus 5% interest p.a. as from 18 December
2021 until the date of effective payment;
USD 69,903 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 18 December 2021 until the date of effective payment.
3.
On 4 May 2022, as the Respondent failed to comply with the Decision, a transfer ban was
imposed on the club by FIFA.
4.
On 10 September 2022, the parties concluded a settlement agreement (hereinafter: the
agreement) having as object the settlement of amounts due by the Respondent to the
Claimant.
5.
Pursuant to the settlement agreement, the parties stipulated a restructure of the payment
plan by the club, which undertook to pay the player in three separate instalments as
follows:
•
•
•
USD 36,000 within the following two days from the signature of the agreement.
USD 28,724.25 no later than 15 November 2022.
USD 28,724.25 no later than 15 January 2023.
6.
Furthermore, pursuant to the agreement, the parties stipulated that (i) its validity was
subject to the payment in due time of the first instalment by the club and that (ii) if the first
instalment was fully paid within the established deadline, the player would request FIFA to
lift the transfer ban imposed on the club.
7.
In continuation, under clause 7 of the agreement the parties agreed that in case of any
delay in the payment of any of the instalments therein stipulated all the remaining
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REF. FPSD-8540
instalments would have become immediately due by the club, together with a penalty
corresponding to 20% of the outstanding amounts (hereinafter: the acceleration clause).
8.
On 29 September 2022, thus 17 days after the deadline of the first instalment had expired,
the club paid the first instalment to the player (i.e., USD 36,000).
9.
As a consequence, and in accordance with the agreement, on 30 September 2022 the
player requested FIFA to lift the ban imposed on the club.
10. On 17 November 2022 the player put the club in default of USD 57,448.50 as overdue
instalments under the agreement plus a penalty of USD 11,489.70, it corresponding to 20%
of the outstanding sums. In this context, the player granted the club a deadline of 10 days
in order to remedy its breach of the agreement, to no avail.
11. On 13 December 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
12. In his claim, the player argued that the club failed to comply with its financial obligations
under the settlement agreement.
13. In particular, according to the player, the club did not pay the second instalment originally
due on 15 November 2022, thus triggering the acceleration clause set under clause 7 of the
agreement, hence all the remaining instalments became due in addition to the relevant
penalty fee.
14. As a consequence, the player presented the following request for reliefs:
•
“USD 57,448.50 as outstanding amount + 5% interest per annum as from 16 November
2022;
•
USD 11,489.70 net as penalty fee. “
15. In response to the claim, the club acknowledged the existence of outstanding sums in
favour of the player and requested a further extension of the deadline in order to pay the
player.
16. In this respect, the club argued that a cause of force majeure prevented it from complying
with its financial obligations in due time.
II. Considerations of the Dispute Resolution Chamber
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REF. FPSD-8540
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also 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 13
December 2022 and submitted for decision on 26 April 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.
18. 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 (March 2023 edition), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from Guinea Republic and a club
from Iraq.
19. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she 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 December 2022, 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
20. 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 she 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
21. The 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 she considered pertinent for the assessment of the matter at hand.
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REF. FPSD-8540
i. Main legal discussion and considerations
22. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties did not dispute the existence of
outstanding remuneration in favour of the player.
23. In particular, the Single Judge noted that the club itself admitted having failed to pay the
second instalment stipulated under the agreement and originally due on 15 November
2022.
24. In this context, the Single Judge also observed that the club did not dispute the application
of the acceleration clause set under the agreement nor objected to the application of the
relevant penalty fee, which in the Single Judge’s view appears reasonable and
proportionate.
25. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Single Judge acknowledged that the club is held liable to pay the player the outstanding
sums deriving from the settlement agreement concluded between the parties, namely the
two instalments each amounting to USD 28,724.25 as well as the penalty fee corresponding
to 20% of the said instalments.
26. In addition, taking into consideration the player’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the player interest at the rate
of 5% p.a. on the outstanding instalments as from the respective due dates until the date
of effective payment. The Single Judge clarified that under the principle ne bis in idem, no
interest shall apply on the penalty however.
ii. 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 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.
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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REF. FPSD-8540
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 its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-8540
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jean Mousté, is accepted.
2.
The Respondent, Al-Diwania, must pay to the Claimant the following amount(s):
USD 57,448.50 as outstanding remuneration plus 5% interest p.a. as from 16
November 2022 until the date of effective payment;
USD 11,489.70 net as penalty fee.
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-8540
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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