DRC Overdue Payables
Texto da decisão
REF FPSD-4063
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player Abdoulaye
Sane
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Mario Flores Chemor (Mexico), member
Stefano Sartori (Italy), member
CLAIMANT:
Abdoulaye Sané, France
Represented by Pedro Macieirinha
RESPONDENT:
Al-Taawoun, Saudi Arabia
Represented by Mohamed Rokbani and Ali Abbes
Page 2
REF FPSD-4063
I.
Facts of the case
1.
On 18 August 2020, the French player Abdoulaye Sane (hereinafter: the Claimant) and the
Saudi Arabian club Al-Taawoun (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the contract), valid between 18 August 2020 and 17 August 2022.
2.
Based on the contract, the Claimant was inter alia entitled to receive the following amounts:
• USD 100,000 as advance payment, due on 23 August 2020;
• USD 150,000 as advance payment, due on 30 August 2021;
• USD 41,666 as salary in the first year of the contract;
• USD 40,000 as salary in the second year of the contract.
3.
On 3 July 2021, the Claimant and the Respondent mutually agreed upon the termination of
the contract and signed a settlement agreement, based on which the Claimant was entitled
to receive the following amount:
USD 150,000, due on 30 August 2021.
4.
What is more, the settlement agreement provides for the following clauses:
‘2. In case the player did not sign a new contract with other team within the current transfer
window or next transfer window, the club shall pay to the player the rest if his monthly
salaries until the effective date of its end on 17/08/2022 payable each month as indicated in
the employment contract’.
‘3. In case the player sign a new contract with other team within the transfer window, the
player will just entitled to receive the amount mentioned in art. 2.1 i.e. (USD 150,000) […]
net and months salaries of (June – July and 17 days of August 2021) total amount of USD
106,943, representing a full, final and satisfactory settlement of all contractual matters and
all his financial dues toward the club and cannot subsequently claim from the first party any
other amount whatever its nature representing’.
‘4. the salaries of (June – July and 17 days of August 2021) total amount of USD 106,943,
mentioned in point (3) will be paid as normal as the rest of the team players receive their on
salaries (for more clarification of the salary of June will be paid when the rest of the team
members receive the June salary and so on)’.
‘5. In case the player sign a contract less salary than his contract with the first party, the first
party shall pay the amount differences between the two salaries, provided that the differences
shall not be more than 25% of the total month salary (for more clarification the player month
salary with Al Ta’awoun (USD 40,000) if he sign contract with new club by monthly salary of
USD 30,000 first party shall pay (USD 10,000) in every month till the end date of the
terminated contract in 17/08/2022’.
Page 3
REF FPSD-4063
5.
On 5 October 2021, the Claimant put the Respondent in default for the amount of USD
230,944, providing it a 10 days’ deadline to remedy its default however to no avail.
6.
After the unilateral termination of the contract, the Claimant remained unemployed.
II. Proceedings before FIFA
7.
On 21 October 2021, 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.
In its claim lodged before FIFA, the Claimant claimed the payment of the following amounts:
•
•
•
9.
USD 150,000 as outstanding advance payment, plus 5% interest p.a. as from the
respective due date;
USD 40,944 as salary for August 2021, plus 5% interest p.a. as from the respective
due date;
USD 40,000 as salary for September 2021, plus 5% interest p.a. as from the
respective due date.
In his claim, the Claimant explains that the Respondent failed to pay him the amount of USD
150,000, due on 30 August 2021, as well as the salaries for August 2021 (USD 23,611 and
USD 17,333 = USD 40,944) and September 2021 (USD 40,000).
b. Position of the Respondent
10. In its reply, the Respondent argued that the Claimant received an amount of USD 41,666 on
5 October 2021, as a result of which the outstanding amount is only USD 189,278, which
remained unpaid until today as a result of the COVID-19 pandemic.
c. Additional position of the Claimant
11. The Claimant confirmed the receipt of the amount of USD 41,666 on 5 October 2021 and
amended his claim as follows:
•
•
•
USD 150,000 as outstanding advance payment, plus 5% interest p.a. as from the
respective due date;
USD 40,000 as salary for September 2021, plus 5% interest p.a. as from the respective
due date;
USD 40,000 as salary for October 2021, plus 5% interest p.a. as from the respective
due date.
Page 4
REF FPSD-4063
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 October 2021 and submitted for decision
on 25 November 2021. 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.
13. 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 (August 2021 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.
14. 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 (August 2021 edition) and
considering that the present claim was lodged on 21 October 2021, the August 2021 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
15. 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
16. 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.
Page 5
REF FPSD-4063
i. Main legal discussion and considerations
17. 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 what the exact amount of
outstanding salaries under the contract is.
18. In this context, the Chamber acknowledged that the Respondent did not contest the amount
of USD 150,000 remained outstanding, but also explained that in connection with the
claimed salaries in connection with the months of August and September 2021, it duly paid
an amount of USD 41,666 to the Claimant on 5 October 2021.
19. What is more, the members of the Chamber took note that the Claimant confirmed the
receipt of the payment of an amount of USD 41,666 on 5 October 2021, as a result of which
said amount shall be deducted from the amount that shall be awarded to the Claimant.
20. Finally, the members of the Chamber wished to point out that it took due note of the
additional salary of October 2021, which was claimed by the Claimant after the closure of
the submission phase in the matter at hand. In this respect, and with reference to the contents
of art. 23 par. 1 of the Procedural Rules, the Chamber decided that said amendment and/or
supplement of the claim shall not be accepted in the matter at hand, and shall be dealt with
in a separate proceeding.
ii. Consequences
21. 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.
22. The Chamber observed that the financial obligations deemed as outstanding in the present
case correspond to USD 150,000 as outstanding advance payment, due on 30 August 2021,
and USD 39,278 as remaining outstanding salary for the month of September 2021.
23. The Chamber further wished to clarify that, since the Claimant confirmed receipt of the
payment of an amount of USD 41,666 on 5 October 2021, the claimed outstanding salary
for August 2021 (USD 40,944) and a part of the outstanding salary for September 2021 (USD
722) is covered with said payment.
24. 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
claimed as outstanding under the contract, in total USD 189,278, as detailed above.
25. 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 amounts as from the respective due dates until the date of
effective payment.
Page 6
REF FPSD-4063
iii. Compliance with monetary decisions
26. 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.
27. 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.
28. 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.
29. 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.
30. 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
31. 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.
32. 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.
33. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
Page 7
REF FPSD-4063
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abdoulaye Sané, is partially accepted.
2.
The Respondent, Al-Taawoun, has to pay to the Claimant, the following amount:
- USD 189,278 as outstanding remuneration plus 5% interest p.a. until the date of
effective payment as follows:
• on the amount of USD 150,000 as from 31 August 2021;
• on the amount of USD 39,278 as from 1 October 2021.
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
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.
7. 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.
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 8
REF FPSD-4063
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 9