DRC Overdue Payables
Texto da decisão
REF FPSD-6427
Decision of the
Dispute Resolution Chamber
passed on 28 September 2022
regarding an employment-related dispute concerning the player Abdoulaye Sane
BY:
André dos Santos Megale (Brazil)
CLAIMANT:
Abdoulaye Sane, France
Represented by Pedro Macierinha
RESPONDENT:
Al Taawoun, Saudi Arabia
Represented by Ali Abbes and Mohamed Rokbani
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REF FPSD-6427
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 from 18 August 2020 until 17 August 2022.
2.
In accordance with the employment contract, the Respondent undertook to pay to the Claimant
a monthly salary of USD 41,666 per month for the first year and USD 40,000 per month for the
second year.
3.
On 3 July 2021, the parties agreed to amicably terminate the contract and concluded termination
agreement (hereinafter: termination agreement).
4.
In accordance with the termination agreement, the Respondent agreed to pay to the Claimant, the
following:
1- The Club shall pay the player a total amount of USD 150.000 in 30/08/2021;
2- In case the player did not sign a new contract with other team within the current transfer window
or the next transfer window, the club shall pay to the player the rest of 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 signed a new contract with other team within the transfer window, the player would
just be entitled to receive the amount mentioned in article 2-1 (USD 150.000 net) and months salaries
of (June-July and 17 days of August 2021, in a 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 months (June-July and 17 days of August 2021 in a total amount of USD106.943,
mentioned in the point 3 would be paid as normal as the rest of the team players receive, they're on
salaries ((form more clarification the salary of June would be paid when the rest of the team members
received the June salary and so on));
5- In case the player signed a contract with less salary than his contract with the first party, the first
party should pay the amount differences between the two salaries, provided that the differences
shouldn't be more than 25% of the total month salary (for more clarification the player month salary
with AI Taawoun (40.000USD) if he sign a contract with new club by monthly salary of 30,000USD first
party shall pay (10,000USD) in every month till the end date of the terminated contract in 17/08/2022.
5.
On 3 June 2022 the Claimant sent a default notice to the Respondent, requesting payment of the
amount of USD 80,000, granting it a 10 days’ deadline to comply, however to no avail.
6.
On 31 August 2022, the Claimant informed FIFA that he is unemployed.
II. Proceedings before FIFA
7.
On 20 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
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a. Position of the Claimant
8.
According to the Claimant, the Respondent failed to comply with its contractual financial
obligations as per the termination agreement.
9.
The requests for relief of the Claimant, were that the Respondent pay him the total overdue
amount of USD 80,000 corresponding to USD 40,000 as his salary for April 2022 and USD 40,000
as his salary for May 2022 plus 5% interest p.a. from the due dates until date of effective payment.
b. Position of the Respondent
10. Notwithstanding the fact that the club was invited to provide its position to the Claimant’s claim it
failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he
took note that the present matter was presented to FIFA on 20 June 2022 and submitted for
decision on 28 September 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.
12. Subsequently, the Single Judge 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 Single Judge 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.
13. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 20 June 2022, the June 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
14. The Single Judge 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 Single Judge stressed the wording of
art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the
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parties, including without limitation the evidence generated by or within the Transfer Matching
System (TMS).
c.
Merits of the dispute
15. His competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge emphasised that in the following considerations he will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
i. Main legal discussion and considerations
16. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note that the case at hand pertains to a claim for outstanding remuneration filed by the
Claimant against the Respondent in connection with a termination agreement, concluded between
them on 3 July 2021.
17. In this context, the Single Judge acknowledged that his task was to determine whether the amounts
claimed by the Claimant had fallen due and were to be paid by the Respondent.
18. Subsequently, the Single Judge noted that – after having been provided with the claim of the
Claimant - the Respondent failed to present its response. By not presenting its position to the
claim, the Single Judge was of the opinion that the Respondent renounced its right of defence and,
thus, accepted the allegations of the Claimant.
19. Furthermore, as a consequence of the aforementioned consideration, the Single Judge expressed
that he shall take a decision upon the basis of the documentation already on file; in other words,
upon the statements and documents presented by the Claimant.
20. In this respect, the Single Judge noted that in accordance with point 2 of the termination agreement
signed between the Claimant and the Respondent, the latter undertook to pay “to the Claimant this
monthly salaries until the effective date of its end on 17/08/2022 payable each month as indicated in
the employment contract, in case the Claimant did not sign a new contract with other team within the
current transfer window or the next transfer window.”
21. In this context, the Single Judge observed from the documentation and information on file, in
particular that the Claimant informed FIFA that he was still unemployed, in this context the Single
Judge remarked that the Claimant seems to have not concluded a new employment contract with
another team hence he remained entitled to his monthly salaries as detailed in point 2 of the
termination agreement.
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22. Taking the above into account and the documentation presented by the Claimant, the Single Judge
concluded that the Respondent had failed to fulfil the contractually agreed obligations as per the
termination agreement and is thus to be held liable for the consequences thereof.
ii. Consequences
23. Having stated the above, the Single Judge turned his attention to the question of the consequences
of such unjustified breach of the termination agreement committed by the Respondent.
24. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Respondent is liable to pay to the Claimant the outstanding amount
of USD 80,000 as per the termination agreement, corresponding to the following amounts:
-
USD 40,000 as April 2022 salary
-
USD 40,000 as May 2022 salary
25. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above amounts from
the respective due dates until the date of effective payment.
iii. Art. 12bis of the Regulations
26. In continuation, bearing in mind the foregoing considerations, the Single Judge referred to art.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
art. 12bis par. 4 of the Regulations. In this respect, she confirmed that the Respondent failed to
comply with its financial obligations in line with the contract, without a prima facie justification, and
was duly notified of the contractual breach by the Claimant, who granted the Respondent at least
10 days to cure its default, to no avail.
27. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations she has
competence to impose sanctions on the Respondent.
28. Moreover, the Single Judge referred to art. 12bis par. 6 of the Regulations, which establishes that
a repeated offence will be considered as an aggravating circumstance and lead to a more severe
penalty.
29. Bearing in mind the above and taking into account that this is a second offense of the Respondent
in the past two years, the deciding body decided to impose a reprimand on the Respondent in
accordance with art. 12bis par. 4 lit. a) of the Regulations.
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iv. Compliance with monetary decisions
30. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24 par. 1
and 2 of the Regulations, which stipulate that, with his 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.
31. In this regard, the Single Judge 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.
32. Therefore, bearing in mind the above, the Single Judge 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.
33. 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.
34. The Single 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. 24 par. 8 of the
Regulations.
d. Costs
35. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.
36. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
37. Lastly, the Single Judge concluded his 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, Abdoulaye Sane, is accepted.
2.
The Respondent, Al Taawoun, has to pay to the Claimant, the amount of USD 80,000 as outstanding
amount plus 5% interest p.a. as from the respective due dates until the date of effective payment
as follows:
- On the amount of USD 40,000 as from 1 May 2022
- On the amount of USD 40,000 as from 1 June 2022
3.
A reprimand is imposed on the Respondent.
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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