DRC Overdue Payables
Texto da decisão
REF FPSD-7047
Decision of the
Dispute Resolution Chamber
passed on 13 October 2022
regarding an employment-related dispute concerning the player Mohamed
Rayhi
COMPOSITION:
DE WEGER, Frans (The Netherlands), Chairperson
SARTORI, Stefano (Italy), Member
VAURASI, Laurel (Fiji), Member
CLAIMANT:
Mohamed Rayhi, the Netherlands
Represented by Ruiz-Huerta & Crespo Sports Lawyers
RESPONDENT:
Al Batin FC, Saudi Arabia
Represented by Sport Makers
Page 2
REF FPSD-7047
I. Facts of the case
1.
On 1 October 2020, the Dutch player, Mohamed Rayhi (hereinafter: the player or the
Claimant), and the Saudi club, Al Batin FC (hereinafter: the club or the Respondent) signed
an employment contract valid as from 30 September 2020 until 30 June 2022 (hereinafter:
the contract).
2.
In accordance with Item 4 of the contract, the Respondent undertook to pay to the
Claimant inter alia a monthly salary of EUR 45,833 during the 2021/2022 season.
3.
The same Item 4 of the contract also established as follows, quoted verbatim:
“In the event that [the club] fails to comply with the payment of any of the aforementioned
instalment within the agreed deadline, [the player] will send a 15-days default notice to [the
club]. In the event [the club] does not comply with said payment within the 15 days granted,
default interest at a rate of 5% per annum will apply as from the agreed deadline until the
effective date of payment.
[...]
All amounts provided are understood to be net of all types of taxes, withholdings, income and
payments on account rates and/or any present or future tax that will be applicable to said
income in KSA, in such way that [the club] undertakes to pay [the player] the corresponding
gross amount at all times so that the liquid amounts committed to [the player] in each case
are reached. In the event that the remuneration paid by [the club] does not reach the net
amount committed in each case, the club will proceed to indemnify [the player] with the
additional gross amount sufficient to guarantee in any case the previously mentioned liquid
amount, also considering the corresponding taxation to the aforementioned additional gross
amount”.
4.
By correspondence dated 5 July 2022, the player put the club in default of payment of
EUR 137,499 net (i.e. the salaries of April, May, and June 2022) setting a 15 days’ time limit
in order to remedy the breach.
II. Proceedings before FIFA
5.
On 12 August 2022, the player lodged a claim against the club in front of FIFA asking that
the club be ordered to pay to him overdue payables in the amount of EUR 137,499 net
corresponding to his outstanding salaries of April, May, and June 2022.
6.
The Claimant further asks to be awarded (i) a penalty at a rate of 5% p.a. of the overdue
amounts cf. item 4, lit. b) of the contract; plus (ii) legal interest of 5% p.a. of the overdue
amounts.
Page 3
REF FPSD-7047
7.
On 11 September 2022, the club submitted its reply to the claim and acknowledged its
debt towards the player amounting to three monthly salaries. Nevertheless, the club
argued that the interest should apply as from “the date of the judgement”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
8.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the
Chamber) 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 12 August 2022
and submitted for decision on 13 October 2022. Taking into account the wording of art.
34 of the June 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.
9.
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 (July 2022 edition), the DRC is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Dutch player and a Saudi club.
10. 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 (July 2022 edition), and
considering that the present claim was lodged on 12 August 2022, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
11. 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
12. 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
Page 4
REF FPSD-7047
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.
i. Main legal discussion and considerations
13. The foregoing having been established, the DRC moved to the substance of the matter,
and took note of the fact that it pertains to a claim for overdue payables lodged by the
player against the club, corresponding to his salaries of April, May, and June 2022.
14. In this context, the Chamber acknowledged that it remained undisputed between the
parties that none of the abovementioned concepts were paid by the club, hence these
should be awarded in line with the general legal principle pacta sunt servanda.
15. In addition, taking into consideration the player’s request as well as the constant practice
of the DRC in this regard, the latter decided to award the player interest at the rate of 5%
p.a. on the outstanding amounts as from each respective due date (i.e. the first day of
each subsequent month) until the date of effective payment.
16. Lastly, the DRC determined that no contractual penalty was applicable because – as
opposed on the argumentation of the player – it lacks contractual basis. In particular, the
Chamber highlighted that item 4, lit. b) of the contract is indeed an interest clause. As
such, no interest shall be applied over interest (ne bis in idem).
17. In conclusion, the Chamber that the claim of the player should be partially accepted.
ii. Article 12bis of the Regulations
18. In continuation, the Chamber referred to article 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 article 12bis
par. 4 of the Regulations.
19. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due form more than 30 days, and granted the club
with 10 days to cure such breach of contract.
20. The Chamber further established that by virtue of article 12bis par. 4 of the Regulations
it has competence to impose sanctions on the club. On account of the above and bearing
in mind that the club is a repeat offender, the DRC decided to impose a fine on the club
in accordance with article 12bis par. 4 lit. c) of the Regulations.
Page 5
REF FPSD-7047
21. Furthermore, the DRC regarded a fine amounting to USD 25,000 as appropriate and
hence decided to impose said fine on the club.
22. In this connection, the Chamber wished to highlight that a repeated offence will be
considered as an aggravating circumstance and lead to more severe penalty in
accordance with article 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
23. Finally, taking into account the applicable Regulations, the DRC 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.
24. In this regard, the Chamber 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.
25. Therefore, bearing in mind the above, the Chamber decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of
notification of the decision, failing which, at the request of the player, 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 club in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
26. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
27. 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
28. 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.
Page 6
REF FPSD-7047
29. Likewise and for the sake of completeness, the DRC recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded
in these proceedings.
30. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 7
REF FPSD-7047
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mohamed Rayhi, is partially accepted.
2.
The Respondent, Al Batin, has to pay to the Claimant the following amount(s):
- EUR 45,833 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
- EUR 45,833 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2022
until the date of effective payment; and
- EUR 45,833 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2022
until the date of effective payment.
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 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.
Page 8
REF FPSD-7047
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 Respondent is ordered to pay a fine of USD 25,000 to FIFA within 30 days of the
notification of this decision. Such payment is to be made to the bank account below with
reference to the present proceedings:
UBS Zurich
366.677.01U (FIFA Players’ Status)
SWIFT: UBSWCHZH80A, Clearing Number: 230
IBAN: CH 27 0023 0230 3666 7701U
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 9
REF FPSD-7047
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 10