Labour Disputes
Texto da decisão
REF FPSD-5212
Decision of the
Dispute Resolution Chamber
passed on 23 June 2022
regarding an employment-related dispute concerning the player Youssoufou Niakaté
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Gonzalo de Medinilla (Spain), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Youssoufou Niakaté, France
Represented by Mr Pedro Macieirinha
RESPONDENT:
Al Ittihad, Saudi Arabia
Represented by Messrs Ali Abbes & Mohamed Rokbani
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I.
Facts of the case
1.
On 1 September 2021, the French Player Youssoufou Niakaté (hereinafter: the Claimant), and the
Saudi Arabian club, Al Ittihad (hereinafter: the Respondent) signed an employment contract
(hereinafter: the Contract) valid as from the date of signature until 30 June 2022.
2.
On 11 January 2022, the Claimant and the Respondent (hereinafter jointly: the Parties) signed a
termination agreement (hereinafter: the Termination Agreement) by way of which they mutually
terminated the Contract.
3.
In accordance with Item 2 of the Termination Agreement, the Parties established that, at the time
said Termination Agreement was signed, the Respondent had no outstanding dues towards the
Claimant.
4.
Furthermore, in accordance with Item 2.1 of the Termination Agreement, the Respondent
undertook to pay the Claimant a settlement fee in the amount of EUR 600,000, payable as follows:
-
5.
Moreover, in accordance with Item 2.3 of the Termination Agreement, the Parties agreed the
following:
-
6.
EUR 200,000 upon signing the Termination Agreement;
EUR 140,000 on or before 30 January 2022;
EUR 130,000 on or before 30 April 2022;
EUR 130,000 on or before 31 May 2022.
“In case any payment herein foreseen is not paid in full and strictly within its due date
by the [Respondent] in favour of the [Claimant], the full payments foreseen above will
become all together jointly and immediately due (acceleration clause) together with a
penalty clause in the amount of 20% (twenty per cent) of the full remunerations
foreseen in article 2 above, which will also have to be paid additionally by the
[Respondent] to the [Claimant] in compensation of said breach.”
By correspondence dated 9 February 2022, the Claimant put the Respondent in default of
payment of EUR 520,000, corresponding to the outstanding sum of EUR 400,000 which
purportedly became due immediately as a result of the application of the acceleration clause
contained in Item 2.3 of the Termination Agreement, as well as EUR 120,000, corresponding to
the penalty clause under Item 2.3 of the Termination Agreement which purportedly entitled the
Claimant to 20% of the full amount of EUR 600,000 under Item 2.1 of the Termination Agreement.
In this respect, the Claimant set a time limit expiring on 19 February 2022 in order to remedy the
default.
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II. Proceedings before FIFA
7.
On 21 February 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
8.
According to the Claimant, the Respondent failed to comply with his financial obligations under
the Termination Agreement.
9.
In particular, the Respondent failed to pay the second instalment under the Termination
Agreement in the amount of EUR 140,000, making the entire outstanding amount of EUR 400,000
payable immediately by virtue of the acceleration clause contained in Item 2.3.
10. Furthermore, the Claimant argued that the penalty clause which is also contained under Item 2.3
of the Termination Agreement entitles him to EUR 120,000, or 20% of the full settlement fee
stipulated in Item 2.1 of the Termination Agreement.
11. The requests for relief of the Claimant, as amended, were the following:
12. The Claimant requested an outstanding amount of EUR 520,000 plus interest at 5% p.a. as from
the “overdue dates” until the date of effective payment.
13. Furthermore, the Claimant requested that the Respondent is sanctioned in line with art. 24 of the
Regulations on the Status and Transfer of Players, should the latter fail to comply with a decision
rendered by FIFA.
b. Position of the Respondent
14. According to the Respondent, whilst recognising that the agreed upon settlement fee has
remained outstanding, it argued that the penalty clause contained in Item 2.3 of the Termination
Agreement should be rejected or amended as it is excessive and/or disproportionate.
15. The Respondent argued that the clause does not stipulate liquidated damages in case of late
payment, but rather to an interest rate applicable on the outstanding amount of EUR 400,000.
Furthermore, in line with the jurisprudence of the FIFA Dispute Resolution Chamber, the
Respondent argued that, in this context, an interest rate of 20% is excessive, and should be
reduced to 18%.
16. Subsidiarily, should it be held that the purported penalty clause in Item 2.3 of the Termination
Agreement does not refer to an interest rate, but rather to liquidated damages, said penalty
clause shall only apply on the sum of EUR 400,000, rather than the full amount of EUR 600,000,
given the fact that the Respondent already paid the first instalment of EUR 200,000 under the
Termination Agreement, and having the penalty apply on the full amount would be unfair. As
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such, the Respondent requested that the contractual penalty payable to the Claimant shall be 20%
of EUR 400,000, i.e. EUR 80,000.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 21 February 2022 and submitted for decision on
23 June 2022. Taking into account the wording of art. 34 of the October 2021 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 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 French player and a Saudi Arabian club.
19. 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 2022), and considering that the present
claim was lodged on 21 February 2022, the August 2021 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
20. 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
21. 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 abovementioned 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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i. Main legal discussion and considerations
22. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that it remained undisputed that the second instalment of the Termination
Agreement was unpaid and that, by virtue of the acceleration clause contained in Item 2.3 of the
Termination Agreement, the entire outstanding amount of EUR 400,000 became due
immediately.
23. Notwithstanding the foregoing, the Chamber took note of the fact that the Parties strongly
dispute the application of the penalty clause contained in Item 2.3 of the Termination Agreement.
24. In this context, the Chamber acknowledged that it its task was to determine whether or not the
penalty clause contained in Item 2.3 of the Termination Agreement indeed referred to the
payment of a penalty, or whether, in turn, it stipulated the interest rate applicable on the
outstanding amount.
25. In this regard, the Chamber took note of the wording of Item 2.3 of the Termination Agreement,
which established that: “In case any payment herein foreseen is not paid in full and strictly within
its due date by the [Respondent] in favour of the [Claimant], the full payments foreseen above will
become all together jointly and immediately due (acceleration clause) together with a penalty
clause in the amount of 20% (twenty per cent) of the full remunerations foreseen in article 2 above,
which will also have to be paid additionally by the [Respondent] to the [Claimant] in compensation
of said breach.”
26. After analysing the content of the aforementioned clause, the Chamber firstly concluded that it
indeed referred to a clause giving rise to the payment of a penalty.
27. Furthermore, with regards to the question as to what amounts the penalty clause of 20%
contained in Item 2.3 of the Termination Agreement shall be applicable to, the Chamber
acknowledged that its task was to consider the proportionality of applying the clause as stipulated
contractually on the entire amount of EUR 600,000, despite the first instalment of EUR 200,000
having already been paid.
28. In this respect, the Chamber took note that a contractual penalty of EUR 120,000, relative to the
outstanding amount of EUR 400,000, corresponds to a value of 30%. In this context, the Chamber
recalled its longstanding jurisprudence and decided that, in line therewith, the penalty clause
fulfilled the criteria of reciprocity and proportionality, and therefore was to be applied in the case
at hand to determine the amount of compensation payable by the Respondent to the Claimant.
29. Furthermore, the Chamber wished to clarify that, in accordance with the legal principle of ne bis
in idem, interest shall only be applicable on the outstanding amount of EUR 400,000, and not on
the contractual penalty of EUR 120,000.
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ii. Consequences
30. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
31. The Chamber observed that the financial obligations deemed as outstanding in the present case
correspond to the instalments under the Termination Agreement in the amount of EUR 400,000
and the contractual penalty of EUR 120,000.
32. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were
outstanding under the Termination Agreement, i.e. EUR 520,000 (i.e. EUR 400,000 plus EUR
120,000).
33. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5%
p.a. on the outstanding amount of EUR 400,000 as from 1 February 2022 (i.e., the date after the
entire outstanding amount became due by virtue of the acceleration clause contained in Item 2.3
of the Termination Agreement) until the date of effective payment.
iii. Compliance with monetary decisions
34. 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.
35. 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.
36. 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.
37. 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.
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38. 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
39. 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.
40. 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.
41. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the Parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Youssoufou Niakaté, is partially accepted.
2.
The Respondent, Al Ittihad, has to pay to the Claimant, the following amount:
- EUR 400,000 as outstanding amount plus 5% interest p.a. as from 1 February 2022 until the
date of effective payment;
- EUR 120,000 as contractual penalty.
▪
3.
Any further claims of the Claimant are rejected.
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 the ban shall be of
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 article
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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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).
CONTACT INFORMATION
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