Labour Disputes
Texto da decisão
REF FPSD-8240
Decision of the
Dispute Resolution Chamber
passed on 23 February 2023
regarding an employment-related dispute concerning
the player Fabrice Ondoa
BY:
Frans de Weger (the Netherlands), Chairperson
Jorge Gutiérrez (Costa Rica), member
Stefano Sartori (Italy), member
CLAIMANT:
Fabrice Ondoa, Cameroon
Represented by Ms Batinde Josée
RESPONDENT:
KV Oostende, Belgium
Represented by Lawcom BVBA
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REF FPSD-8240
I. Facts of the case
1. On 22 June 2018, the Cameroonian player Fabrice Ondoa (hereinafter the Claimant) and the
Belgian club K.V. Oostende (hereinafter the Respondent) concluded an employment contract
valid as from 1 July 2018 until 30 June 2022 (hereinafter the Contract).
2.
On 3 November 2021, following the unilateral termination of the Contract, FIFA rendered a
decision (FPSD-1960) in the Claimant’s favour, by virtue of which the Respondent was
obligated to pay total compensation of EUR 315,530 (gross) and EUR 590 as a flight ticket to
Cameroon.
3. On 3 November 2021, the aforementioned decision – FPSD-1960 – was notified to the parties.
4. On 23 December 2021, the grounds of said decision were notified to the parties.
5. On 10 February 2022, the Claimant put the Respondent in default of payment of the amount
due under the decision with reference FPSD-1960, granting a deadline of 10 days for the
latter to comply with the request.
6. On 11 February 2022, the Respondent replied to the Claimant and enquired whether the
Claimant would agree to receiving the due amount in three instalments, due to cashflow
problems of the former at the time, as well as adding interest of 5% p.a. on said amount.
7. On the same day, the Claimant sent the Respondent an e-mail confirming that it would agree
to reschedule the payment as requested, and that he would revert with a settlement
agreement to formalize the above.
8. On the same day still, the Claimant sent a draft settlement agreement to the Respondent.
9. On 14 February 2022, the Respondent sent an amended draft of said settlement to the
Claimant in which it was specified that the amounts contained therein should be considered
gross and payable only after deduction of social security contributions and withholding
payroll tax.
10. On 15 February 2022, the Claimant indicated that amounts should be net, and sent once
again a different draft to reflect this.
11. On the same day, the Respondent contested this position with reference to the decision
rendered by the DRC with ref. FPSD-1960, and maintained that the amounts are gross, as
opposed to net.
12. On 16 February 2022, the Claimant indicated that he needed time to assess the situation and
assured the Respondent that it would revert in due course.
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13. On 11 March 2022, the Claimant sent the Respondent a draft settlement agreement
(hereinafter: the Settlement Agreement), signed only by the former, in accordance with which
the payment ordered under the previously mentioned FIFA Decision was rescheduled as
follows:
-
EUR 157,765 gross on the date of signing the Settlement Agreement;
EUR 157,765 gross by no later than 15 April 2022;
EUR 16,366 net (date of payment unclear).
14. Furthermore, in accordance with art. 1 thereunder, the Settlement Agreement stipulated as
follows:
“If the Club doesn’t pay one of the instalments within the prescribed above mentioned deadlines,
for some reason that it is and without prior formal notice from the Player, the Club is indebted
without delay of the total sum remaining due as principal increased by an interest at 10% (ten
percent) per annum from the date of eligibility of the instalment (not honoured in time) until the
date of effective payment and with a supplementary fixed penalty amounting to
EUR 25,000 (i.e. twenty five thousand EUR).”
15. Lastly, in accordance with art. 5 thereunder, the Settlement Agreement stipulated as follows:
16. “The Parties agree that this Settlement Agreement shall come into full binding force immediately
upon its signature by the Parties and its exchange by facsimile. The Parties shall forward a copy
of this Settlement Agreement to FIFA Execution.”
17. On the same day, in the email accompanying said Settlement Agreement, it was stated as
follows:
« Pour rappel, le présent accord n'est valable qu'en contre partie de la réception pour ce jour du
premier versement sur le compte tiers de mon cabinet dont les coordonnées se retrouvent repris
dans l'accord. »
(Freely translated into English)
“As a reminder, the present agreement only enters into force once the first instalment is received in
the bank account specified therein.”
18. On the same day still, the Respondent made a payment of EUR 89,724.05 to the Claimant’s
bank account. In this respect, the Claimant requested clarification as to how said amount
was calculated, and equally reminded the Respondent that the second instalment under the
Settlement Agreement would fall due on 15 April 2022.
19. On 22 March 2022, the Respondent provided a tax deduction calculation within the scope of
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corroborating the amount paid on 11 March 2022, according to which the gross amount of
EUR 315,530 corresponded to a total net amount of EUR 163,082.10.
20. On 15 April 2022, the second instalment under the Settlement Agreement allegedly fell due.
21. On 21 April 2022, the Claimant put the Respondent in default of payment of the second
instalment under the Settlement Agreement, in the amount of EUR 157,765, as well as a
contractual penalty of EUR 25,000 in accordance with art. 1 thereunder.
22. On 27 April 2022, the Respondent made a further payment to the Claimant of EUR 73,358.10.
23. On 2 May 2022, the Claimant once again put the Respondent in default of payment, however,
this time only for EUR 25,000, corresponding to the penalty clause for late payment of the
second instalment stipulated under the Settlement Agreement.
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II. Proceedings before FIFA
a. Position of the Claimant
1.
On 16 November 2022, the Claimant lodged a claim before FIFA for the outstanding amount of
EUR 25,000 as a contractual penalty under the Settlement Agreement allegedly concluded on
11 March 2022.
2.
In this respect, the Claimant maintains that the Settlement Agreement was concluded validly and
that art. 1 thereunder stipulated that late payment of any amount agreed upon would result in a
penalty of EUR 25,000, as well as 10% interest applicable during the period of delay.
3.
Furthermore, the Claimant outlined that, although the due date for the second instalment under
the Settlement Agreement was 15 April 2022, payment only occurred on 27 April 2022, thereby
triggering the penalty clause.
4.
Consequently, the Claimant requested payment of EUR 25,000, plus interest of 5% p.a. as from the
date of the claim until the date of effective payment.
b. Position of the Respondent
5.
In its reply, the Respondent outlined that it never signed the Settlement Agreement which the
Claimant is basing his claim upon.
6.
In doing so, the Respondent pointed out that the copy of the Settlement Agreement submitted by
the Claimant was only signed by the latter, and also that the exchange of emails throughout the
course of the dispute demonstrates that the parties only ever exchanged drafts of a settlement
agreement, and that no conclusive agreement had been reached.
7.
The Respondent also argued that it made the payments in good faith and in accordance with the
FIFA decision with ref. FPSD-1960, not in accordance with the Settlement Agreement which,
according to the Claimant, was concluded on 11 March 2022 and bound both parties.
8.
Alternatively, the Respondent argued that, in the unlikely event that the Settlement Agreement
should be seen as valid and binding, the penalty clause should be considered excessive and
disproportionate.
9.
Thus, the Respondent rejected the claim in its entirety.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 16 November
2022 and submitted for decision on 23 February 2023. Taking into account the
wording of art. 34 of the October 2022 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.
2.
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 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 a Cameroonian player and a Belgian club.
3.
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 (October
2022 edition), and considering that the present claim was lodged on
16 November 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
4.
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
5.
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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i. Main legal discussion and considerations
6.
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 obligation of
paying a contractual penalty on the basis of an allegedly concluded Settlement
Agreement.
7.
In this context, the Chamber acknowledged that it its task was to assess whether,
subsequent to the question whether the Settlement Agreement in question was at
all validly concluded, whether or not the Respondent would be obligated to pay a
contractual penalty for failing to comply with such Agreement.
8.
In this respect, and before entering the analysis of the parties’ submissions and
relevant evidence, the Chamber recalled the wording of art. 13 par. 5 of the
Procedural Rules, according to which a party asserting a fact bears the burden of
proving its veracity.
9.
Having stated the above, the Chamber firstly considered the question surrounding
the validity of the Settlement Agreement. In this respect, the Chamber noted that the
Claimant had submitted a copy thereof which was only signed by himself, as well as
the exchange of correspondence between himself and the Respondent, prior to the
communication of said document, and immediately thereafter.
10. Equally, the Chamber took note of the argumentation of the Respondent that it never
signed, nor returned the document to the Claimant with its signature, and that the
payments made to the Claimant following the communication of the document were
not related thereto, but rather based on the decision rendered by FIFA with reference
FPSD-1960.
11. Having considered the above, the Chamber observed that, indeed, the Settlement
Agreement alluded to by the Claimant indeed only contained the signature of the
latter, and was not reciprocally signed by the Respondent.
12. Furthermore, the Chamber remarked, the correspondence exchanged between the
parties did not reveal a mutual agreement as to the terms of the Contract, nor the
intention of the Respondent to be bound by the terms proposed in the document
sent by the Claimant.
13. In this respect, the Chamber particularly raised the fact that the Respondent
provided a tax deduction calculation which contrasted the terms of the Settlement
Agreement and corroborated the fact that the first payment of EUR 89,724.05 could
not be specifically reconciled therewith. In the Chamber’s view, this supported the
Respondent’s submission that the payments made were in the context of the
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decision previously rendered by FIFA with reference FPSD-1960, which had not, at
this point, been complied with.
14. Thus, the Chamber concluded that the Settlement Agreement at the basis of the
present dispute could not be held valid and binding, in the absence of the
Respondent’s signature, indicating the intention of the latter to be bound by the
terms of said document.
15. Consequently, and in conclusion, the Chamber concluded that the Claimant’s petition
had no contractual basis, and decided therefore to reject the claim.
d. Costs
16. 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.
17. 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.
18. 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, Fabrice Ondoa, is rejected.
2. 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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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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