Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 10 February 2020,
by
Daan de Jong (The Netherlands)
on the claim presented by the player,
Zouhair Ouchen, Morocco,
represented by Ms Sarah Zahraoui
as Claimant
against the club,
Al S alm iy a S porting Club, Kuwait
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 24 July 2017, the Moroccan player Zouhair Ouchen (hereinafter: the Claimant
or the player) and the Kuwaiti club, Al Salmiya Sporting Club (hereinafter: the
Respondent or the club) concluded an employment contract (hereinafter:
contract), valid as from 1 August 2017 until 30 June 2018.
2.
On 10 October 2017, the parties signed a termination agreement, according to
which the club had to pay to the player the amount of USD 34,000.
3.
On 10 February 2019, the player lodged a claim in front of FIFA against the club
due to its nonfulfillment of its financial obligations arising from the abovementioned termination agreement.
4.
On 15 April 2019, the parties signed a settlement agreement (hereinafter: the
agreement). In accordance with the agreement, the Respondent was obliged to
make the following payments to the player:
- USD 12,000 by no later than 31 May 2019;
- USD 12,000 by no later than 31 July 2019;
- USD 12,000 by no later than 30 September 2019.
5.
Further, the agreement contained the following clause: “If the club doesn’t pay
one of the instalments within the prescribed above mentioned deadlines, for some
reason that is and without prior formal notice to the player, the club is indebted
without delay of the total sum remaining due increased by an interest at 5% per
annum from the date of eligibility if the instalment not paid until the date of
effective payment and with a supplementary fix penalty amounting to USD 5,000”.
6.
On 18 June 2019, after several reminders from the Claimant, the Respondent paid
the first instalment. The Respondent invoked administrative issues as the reason
why the payment was delayed. The Respondent paid the second instalment on 11
July 2019, and the third on 30 September 2019.
7.
On 9 August 2019, the player lodged a claim in front of FIFA against the club
requesting payment of USD 5,000 as penalty fee since the first instalment was paid
late.
8.
In its reply, was paid late due to administrative issue.
II.
Cons iderations of the Dis pute Res olution Cham ber (DRC) judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
case at hand. In this respect, it took note that the present matter was submitted
to FIFA on 9 August 2019. Consequently, the 2018 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand
(cf. art. 21 of the Procedural Rules).
Player Zouhair Ouchen, Morocco / Club Al Salmiya Sporting Club, Kuwait
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2.
Subsequently, the DRC judge noted that, in accordance with art. 24 par. 1 and 2.
in combination with art. 22 lit. b) of the aforementioned Regulations on the Status
and Transfer of Players (edition January 2020), the DRC judge is competent to deal
with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Moroccan player and a Kuwaiti club.
3.
Furthermore, the DRC 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 Player (edition
January 2020), and considering that the present claim was lodged on 9 August
2019, the June 2019 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this
respect, he started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the DRC
judge 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.
5.
First, the DRC judge noted that the parties entered into an agreement on 15 April
2019, according to which the Respondent committed to pay the Claimant the
following amounts
- USD 12,000 by no later than 31 May 2019;
- USD 12,000 by no later than 31 July 2019;
- USD 12,000 by no later than 30 September 2019.
6.
In this context, the DRC judge took note of the following clause as part of the
agreement: “If the club doesn’t pay one of the instalments within the prescribed
above mentioned deadlines, for some reason that is and without prior formal
notice to the player, the club is indebted without delay of the total sum remaining
due increased by an interest at 5% per annum from the date of eligibility if the
instalment not paid until the date of effective payment and with a supplementary
fix penalty amounting to USD 5,000”.
7.
Furthermore, the DRC duly noted that the Respondent performed the payment of
the first instalment in the amount of USD 12,000 on 18 June 2019 only, namely
after that the Claimant had put the club in default.
8.
With the above in mind, the DRC judge proceeded to examine the positions of the
parties and took note that the Claimant considered that the penalty of USD 5,000,
in accordance with the agreement was due.
9.
Moreover, the DRC judge noted that the Respondent held that the late payment
occurred due to an administrative issue.
Player Zouhair Ouchen, Morocco / Club Al Salmiya Sporting Club, Kuwait
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10.
On account of the above and, in particular, the diverging positions of the parties,
the DRC judge considered that the central issue of present dispute consists in
assessing whether the penalty stipulated in the agreement is applicable and, in
case, to what extent.
11.
In this respect, the members of the Chamber, before going into the merit of the
aforementioned issue, wished to recall that the Respondent indeed fulfilled its
obligation, even though with delay, to provide the Claimant with the payment of
the instalments due from the agreement and, thus, in accordance with the general
legal principle of pacta sunt servanda.
12.
Subsequently, the Chamber focussed its attention on the penalty clause contained
in the agreement (cf. point I.5. above), in light of the Respondent having paid the
first instalment of USD 12,000 after the relevant deadline for payment had fallen
due and the Claimant’s pertinent request.
13.
In this context, the DRC judge referred to its constant jurisprudence, in accordance
with which penalty clauses may be freely entered into by the parties and may be
considered acceptable, in the event that the pertinent written clause meets certain
criteria, such as proportionality and reasonableness. In this respect, the DRC judge
further highlighted that, in order to determine as to whether a penalty clause is
to be considered acceptable, the specific circumstances of the relevant case
brought before it shall also be taken into consideration.
14.
In the specific case at hand, the members of the DRC judge took into account the
business experience of the Respondent and the interest of the Claimant by timely
receiving the outstanding amounts. The DRC judge concluded that, with regard to
these criteria, the Respondent did not present any evidence that could lead to the
conclusion that the Respondent had valid reasons for the late payment of the
agreed amount.
15.
In the specific case at hand, the members of the DRC judge deemed that the
penalty fee of USD 5,000, which the parties contractually agreed upon in the
context of settling their dispute, is both proportionate and reasonable in the case
at hand, since it represents 13.8% of the total payment due according to the
agreement.
16.
On account of all of the above, the DRC judge decided that the contractual penalty
fee is valid and applicable in the present matter and that the Respondent is liable
to pay to the Claimant the amount of USD 5,000 in accordance with the
agreement.
Player Zouhair Ouchen, Morocco / Club Al Salmiya Sporting Club, Kuwait
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17.
Furthermore, taking into account the consideration under number II./3. above, the
DRC judge referred to par. 1 and 2 of art. 24bis 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.
18.
In this regard, the DRC judge pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
19.
Therefore, bearing in mind the above, the DRC judge decided that, in the event
that the Respondent does not pay the amounts due to the Claimant within 45 days
as from the moment in which the Claimant, following the notification of the
present decision, communicates the relevant bank details to the Respondent, a
ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall
become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of
the Regulations.
20.
Finally, the DRC 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. 24bis par. 3 of the Regulations.
Player Zouhair Ouchen, Morocco / Club Al Salmiya Sporting Club, Kuwait
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III.
Decision of the Dis pute Res olution Cham ber (DRC) judge
1.
The claim of the Claimant, Zouhair Ouchen, is accepted.
2.
The Respondent, Al Salmiya Sporting Club, has to pay to the Claimant the amount
of USD 5,000.
3.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the email address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amount mentioned under point 2. above.
4.
The Respondent shall provide evidence of payment of the due amount in
accordance with point 2. above to FIFA to the e-mail address [email protected], duly
translated into one of the official FIFA languages (English, French, German,
Spanish).
5.
In the event that the amount due in accordance with point 2. above is not paid by
the Respondent w ithin 45 day s as from the notification by the Claimant of the
relevant bank details to the Respondent, the Respondent shall be banned from
registering any new players, either nationally or internationally, up until the due
amount is paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
6.
The ban mentioned in point 5. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
Player Zouhair Ouchen, Morocco / Club Al Salmiya Sporting Club, Kuwait
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7.
In the event that the amount due in accordance with point 2. above is still not paid
by the end of the ban of three entire and consecutive registration periods, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
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Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Zouhair Ouchen, Morocco / Club Al Salmiya Sporting Club, Kuwait
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