DRC Overdue Payables
Texto da decisão
REF. FPSD-17839
Decision of the
Players’ Status Chamber
passed on 11 March 2025
regarding a contractual dispute concerning
the player Jackson Muleka Kyanvubu
BY:
Julie JØRGENSEN (Denmark)
CLAIMANT:
Beşiktaş AŞ, Türkiye
RESPONDENT:
Al Kholood, Saudi Arabia
Represented by Sport Makers
pg. 2
REF. FPSD-17839
I. Facts of the case
1.
On 20 August 2024, the Turkish club Beşiktaş AŞ (hereinafter, Beşiktaş or the Claimant) the
Saudi Arabian club Al Kholood (hereinafter, Al Kholood or the Respondent) and the
Congolese player Jackson Muleka Kyanvubu (hereinafter, the Player) concluded a loan
agreement (hereinafter, the Agreement) for the Player’s transfer on loan from Beşiktaş to Al
Kholood until 30 June 2025.
2.
Pursuant to Clause 5 of the Agreement, Al Kholood undertook to pay Beşiktaş
EUR 1,000,000 net in the following three instalments:
- EUR 400,000 net on 1 November 2024;
- EUR 300,000 net on 1 February 2025; and
- EUR 300,000 net on 1 May 2025.
3.
In addition, Clause 9 of the Agreement provides as follows:
“In the event that Al Kholood FC shall delay in paying any instalments of the loan fee or any
part of this for more than thirty (30) days after due date of Article V Al Kholood shall pay
Besiktas contractual penalty ten (10%) on the payment that was delayed”.
4.
On 6 December 2024, Beşiktaş put Al Kholood in default, requesting the payment of the
first instalment under the Agreement, amounting to EUR 400,000, as well as a contractual
penalty of EUR 40,000, representing 10% of the aforementioned first instalment. Beşiktaş
granted Al Kohood a deadline of 10 days to fulfil its contractual obligations.
II. Proceedings before FIFA
5.
On 17 January 2025, the Beşiktaş filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
6.
Beşiktaş argued that Al Kholood failed to pay the first instalment of the Agreement in the
terms agreed therein. As such, Beşiktaş claimed to be entitled to EUR 400,000 for the
aforementioned instalment.
7.
In addition, Beşiktaş sustained that Al Kohood’s failure to pay the first instalment of the
Agreement within the 30 days stipulated therein triggered the contractual penalty provided
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REF. FPSD-17839
for in Clause 9 of the Agreement. Therefore, Beşiktaş also claimed to be entitled to
EUR 40,000 as a contractual penalty, representing 10% of the principal amount.
8.
Beşiktaş further asserted that a contractual penalty amounting to 10% of the loan fee is
proportionate in light with the jurisprudence of the Court of Arbitration for Sport (CAS).
9.
Beşiktaş requested the following relief:
“Beşiktaş respectfully requests FIFA Football Tribunal:
(i)
To find the claim admissible.
(ii) To consider the dispute within the framework Article 12bis of RSTP.
(iii) To order that the Respondent shall pay 400.000,00 EUR together with the interest
accrued of 5% per annum from the date of 02.11.2024 until the date of effective
payment, as outstanding remuneration.
(iv) To order that Al Kholood shall pay 40.000,00 EUR of penalty fee due to the breach
of contract.
(v) To order that procedural costs should be paid by the Respondent”.
b. Position of the Respondent
10. In its reply, Al Kholood argued that it was expecting to receive external funds from its
financial recourses, “(…) but that these funds got delayed for several reasons”. Furthermore,
Al Kholood sustained that it was facing a financial crisis when Beşiktaş requested the
payment. According to Al Kholood, this financial crisis was supposed to be resolved through
the amounts that it was expecting to receive, but that “(…) these funds were late with
payment. As a result, the Respondent was unable to fulfil its financial obligations in due time,
including the payment requested by the Claimant”.
11. In this regard, Al Kholood sustained that it failed to pay the agreed amount due to the fact
that the Ministry delayed a payment due to Al Kholood, and that this delay was beyond its
control and not planned or even previously notified by the Ministry.
12. Al Kholood argued that the failure to comply with the terms of the Agreement was due to
the aforementioned situation, which it considered to be of force majeure. As such, Al
Kholood argued that the contractual penalty should not be applicable.
13. Based on the foregoing, Al Kholood submitted that “it reasonably deserves the application of
the force majeure principle in its favour. However, out if its good faith, the Respondent does not
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REF. FPSD-17839
request an exemption from paying the amounts, but rather a mere exemption from paying any
delay penalty”.
14. Al Kholood requested the following relief:
“In the light of all the above and under consideration of the factual and legal aspects as
outlined in our present position we respectfully request FIFA,
• To refer the present dispute to be settled by mediation,
• Alternatively, to accept and grant our requests and issue a decision stating that:
• To establish that the Claimant is entitled to the amounts in question amounting to
EUR 400,000 without applying any delay penalty based on our submitted and
evidenced force majeure”.
III. Considerations of the Players’ Status Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Players’ Status Chamber (hereinafter, 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 17 January 2025 and submitted
for decision on 11 March 2025. Taking into account the wording of art. 34 of the January
2025 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.
16. Furthermore, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 2 in combination with art. 22 par. 1 lit. g) of the January
2025 edition of the Regulations on the Status and Transfer of Players (hereinafter, the
Regulations), she is competent to deal with the matter at stake, which concerns a
contractual dispute between two clubs belonging to different associations.
17. 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. 29 of
the Regulations (January 2025 edition), and considering that the present claim was lodged
on 17 January 2025, the January 2025 edition of said Regulations is applicable to the matter
at hand as to the substance.
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REF. FPSD-17839
b. Burden of proof
18. 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
19. Having established the competence and the applicable regulations, 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 assessing the matter at hand.
i. Main legal discussion and considerations
20. The Single Judge then moved to the substance of the matter, and took note that it
concerned a claim by a club against another club for overdue payables and the
enforceability of a contractual penalty.
21. The Single Judge noted that, according to Beşiktaş, Al Kholood failed to remit the first
instalment of the Agreement, amounting to EUR 400,000, and therefore claimed to be
entitled to such amount. In addition, Beşiktaş submitted that Al Kholood failed to pay the
aforementioned instalment within 30 days as stipulated in the Agreement, and therefore
Beşiktaş also claimed to be entitled to a contractual penalty of 10% of the principal amount,
i.e., EUR 40,000.
22. The Single Judge also noted that, on its part, Al Kholood did not dispute having failed to pay
the first instalment of the Agreement. Nonetheless, Al Kholood argued the occurrence of a
force majeure situation that allegedly prevented it from complying with the terms of the
Agreement. In view of this purported situation of force majeure, Al Koholood claimed that
the contractual penalty should not be enforced.
23. In this context, the Single Judge first noted that the principal debt was acknowledged by Al
Koholood, and therefore concluded that it remained undisputed that the Respondent had
failed to comply with the payment of the first instalment of the Agreement.
24. In view of the foregoing and bearing in mind the legal principle of pacta sunt servanda, which
in essence means that agreements must be respected by the parties in good faith, the
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REF. FPSD-17839
Single Judge decided that Al Koholood is held liable to pay Beşiktaş the outstanding
amounts deriving from the Agreement. As a consequence, the Single Judge decided to
award Beşiktaş EUR 400,000.
25. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award Beşiktaş interest
at the rate of 5% per annum on the outstanding amount as from 2 November 2024 until
the date of effective payment.
26. The above having been established, the Single Judge then turned to the analysis as to
whether, as argued by Al Kholood, the contractual penalty stipulated in the Agreement
should not be enforced. In doing so, the Single Judge first recalled that, pursuant to Clause
9 of the Agreement:
“In the event that Al Kholood FC shall delay in paying any instalments of the loan fee or any
part of this for more than thirty (30) days after due date of Article V Al Kholood shall pay
Besiktas contractual penalty ten (10%) on the payment that was delayed”.
27. Accordingly, the Single Judge noted that the parties had agreed that in case Al Kholood
failed to pay any of the instalments of the Agreement within 30 days of their relevant due
dates, a contractual penalty of 10% of the defaulted amount would automatically trigger.
28. With the above in mind, the Single Judge underscored that Al Kholood did not dispute that
the aforementioned contractual penalty had been triggered, but rather that it should not
be enforced in view of the purported situation of force majeure and the financial crisis it
was suffering.
29. In particular, the Single Judge noted that Al Kohoolod contended that it was in a financial
crisis after the Ministry had delayed an alleged payment owed to it. According to Al
Koholood, this constituted a situation of force majeure, and therefore argued that the
contractual penalty should not be enforced.
30. Nonetheless, the Single Judge noted that Al Koholood did not provide any evidence
regarding the alleged financial difficulties or the purported situation of force majeure other
than its own statements. In this regard, the Single Judge noted that Al Kholood limited to
argue that it was expecting a payment from the Ministry and that such payment was
delayed, which allegedly prevented it to comply with the terms of the Agreement, without
presenting any evidence in this regard.
31. In other words, the Single Judge underscored that Al Koholood did not demonstrate the
alleged force majeure situation, how the alleged financial difficulties specifically affected it
or explain why it was unable to meet its obligations towards Beşiktaş.
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REF. FPSD-17839
32. In addition, the Single Judge recalled the longstanding jurisprudence of the Football
Tribunal, which on many occasions has held that financial difficulties are not a valid
justification for non-payment of contractually agreed amounts. Hence, in the Single Judge’s
view, there was no force majeure event in the present case.
33. Consequently, the Single Judge considered that there were no valid reasons to deviate from
the contractual terms agreed upon the parties.
34. In view of the foregoing, and considering that it remained undisputed by Al Kholood that it
failed to pay the first instalment of the Agreement by 1 December 2024 (i.e., 30 days after
its due date, on 1 November 2024), the Single Judge concluded that the agreed contractual
penalty was triggered on 2 December 2024, and that such contractual penalty should be
enforced.
35. Based on the above, and also bearing in mind the legal principle of pacta sunt servanda, the
Single Judge decided that Al Kholood must be ordered to pay Beşiktaş EUR 40,000 as
contractual penalty, which the Single Judge considered to be proportional and in line with
the jurisprudence of the Football Tribunal.
36. The Single Judge, by recalling the legal principle of non bis in idem, further established that
no interest should be applicable over the penalty.
ii. Art. 12bis of the Regulations
37. 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. In this respect, the Single Judge confirmed that the Respondent
failed to comply with its financial obligations in accordance with the Agreement, 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.
38. The Single Judge established that, by virtue of art. 12bis par. 4 of the Regulations, she has
competence to impose sanctions on the Respondent.
39. 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.
40. Bearing in mind the above and taking into account that the Respondent is a repeat
offender, the Single Judge decided to impose a reprimand on the Respondent.
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REF. FPSD-17839
iii. Compliance with monetary decisions
41. 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.
42. 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.
43. 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.
44. 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.
45. 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
46. Finally, the Single Judge referred to art. 25 par. 1 and 2 of the Procedural Rules, according
to which in disputes between clubs, costs in the maximum amount of USD 25,000 are
levied. As per art. 25 par. 5 of the Procedural Rules, the Single Judge will decide the amount
that each party is due to pay, in consideration of the parties’ degree of success and their
conduct during the procedure, as well as any advance of costs paid.
47. Taking into account that the claim of the Claimant has been fully accepted, the Single Judge
concluded that the Respondent shall bear the costs of the current proceedings before FIFA.
According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied
on the basis of the amount in dispute. Consequently, the Single Judge concluded that the
maximum amount of costs of the proceedings corresponds to USD 25,000.
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REF. FPSD-17839
48. In light of the above, the Single Judge determined the costs of the current proceedings to
the amount of USD 25,000 and concluded that said amount has to be paid by the
Respondent in order to cover the costs of the present proceedings.
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REF. FPSD-17839
IV. Decision of the Players’ Status Chamber
1.
The claim of the Claimant, Beşiktaş AŞ, is accepted.
2.
The Respondent, Al Kholood, must pay to the Claimant the following amount(s):
- EUR 400,000 as outstanding amount plus 5% interest per annum as from 2 November
2024 until the date of effective payment.
- EUR 40,000 as contractual penalty.
3.
A reprimand is imposed on 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.
The final costs of the proceedings in the amount of USD 25,000 are to be paid by the
Respondent to FIFA. FIFA will reimburse to the Claimant the advance of costs paid at the
start of the present proceedings (cf., note relating to the payment of the procedural costs
below).
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-17839
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12