Dispute Resolution Chamber
Texto da decisão
REF 20-01388
Decision of the
Dispute Resolution Chamber
passed on 28 April 2021
regarding an employment-related dispute concerning the player Sekou Sanogo
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Sekou SANOGO, Côte d'Ivoire
RESPONDENT:
Ittihad FC, Saudi Arabia
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I.
Facts
1.
On 21 December 2019, the Claimant and the professional football club Al Ittihad FC (hereinafter
«the Respondent») entered into the ‘Professional Football Player Contract’ with respect to the
establishment of the employment relationship between them for the period from 7 January
2019 until 30 June 2022.
2.
On 25 November 2019, the Claimant filed a claim against the respondent before FIFA (Ref. Nr.
19-02169). The Claim was subsequently withdrawn.
3.
On 19 January 2020, the parties concluded a new contract, valid as from 8 January 2020 until
30 June 2022.
4.
The “Additional agreement” concluded between the parties stipulated, inter alia, the
following:
“item 4, paragraph 1 (immediate payments) remains in force and the player is therefore entitled
to a payment of USD 770,908 net due immediately after signature of the professional football
player contract between the parties.
-For the season 2020/2021, a payment of USD 340,995,60 net, due on 5 July 2020 at the latest,
will be made”
5.
On 29 April 2020, the Respondent declared, that his monthly salary exceeding the amount of
SAR 20,000 would be reduced by 50 percent with effect from 15 March 2020. This measure will
be maintained « […] until the resumption of the sportive activities, club training and the
disappearance of the COVID-19 pandemic.».
6.
On 19 August 2020, the Claimant sent a default notice, requesting the payment of USD
1,741,839.66 net by no later than 30 August 2020.
7.
On 29 September 2020, the Claimant lodged a claim before FIFA against the Respondent and
requested the payment of the total amount of USD 1,098,763.60 net plus 5% interest p.a. as
from 30 August 2020, detailed as follows:
- USD 757,768 net, payable on 30 June 2020;
- USD 340,995.60 net, payable on 5 July 2020;
8.
The Claimant explained that the amount of USD 757,768 net was agreed as a settlement for the
previous dispute.
9.
In its reply to the claim, the Respondent rejected the arguments of the Claimant.
10.
However, the Respondent, argued that it “does not in principle dispute that a certain financial
compensation is due to the Player and that the Parties agreed to specific payment
terms”, but mentioned that “the unforeseen circumstances caused by the COVID-19 pandemic
subsequently changed the factual and legal framework under which the Additional Agreement
has been signed originally.
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11.
According to the Claimant, the unforeseen circumstances caused by the COVID-19 pandemic
changed the factual and legal framework under which the terms of the Additional Agreement
between the Parties were originally were negotiated.
12.
Accordingly, the Respondent considered that the Dispute Resolution Chamber shall adapt
the terms contract to new circumstances and conditions, corresponding to the today's economic
reality in the world of football.
13.
In support of its allegations, the Respondent provided the following screenshot:
II.
Considerations of the Dispute Resolution Chamber
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.
Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
2.
Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs.
3.
In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations
of the Status and Transfer of Players should be applicable to the present matter. In this
respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players, and considering the date
when the claim was lodged, the June 2020 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand.
4.
With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well
as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
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5.
In this respect, the Chamber noted that, on 21 December 2019, the parties entered into an
employment contract, which subsequently was the basis of a previous dispute before FIFA,
which was handled under the reference number 19-02169. Thereafter, the Chamber noted
that said matter was amicably settled and that, on 19 January 2020, the parties concluded a
new employment contract stipulating, inter alia, the following:
“item 4, paragraph 1 (immediate payments) remains in force and the player is therefore
entitled to a payment of USD 770,908 net due immediately after signature of the
professional football player contract between the parties.
-For the season 2020/2021, a payment of USD 340,995,60 net, due on 5 July 2020 at the latest,
will be made”
6.
Subsequently, the Chamber noted that the Claimant lodged a new claim before FIFA, by
means of which it requested the payment of the amounts stated in the previous paragraphs,
i.e. the amount of USD 1,098,763.60 net, as follows:
- USD 757,768 net, payable on 30 June 2020;
- USD 340,995.60 net, payable on 5 July 2020.
7.
Thereafter, the Chamber took note of the Respondent’s position according to which,
fundamentally, (a) it did not dispute the existence of the debt but (b) arguer that “the
unforeseen circumstances caused by the COVID-19 pandemic subsequently changed the
factual and legal framework under which the Additional Agreement has been signed
originally.
8.
In view of the above, the Chamber understood that the present matter is not related to the
quantum of the debt, but on whether the circumstances concerning the COVID-19 pandemic
could justify any deduction.
9.
In this respect, the Chamber first noted that the amount of USD 757,768 net, regardless of
the fact that the parties agreed to settle it at a later date, was related to a previous dispute
that was arisen before the outbreak of the pandemic in March 2020. Hence, the Chamber
understood that the Respondent is not in a position to deduct any amount in this respect,
since ultimately said amount was largely due before the outbreak.
10.
Moreover, as to the amount of USD 340,995.60 net, which was due on 5 July 2020, the
Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak,
FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate
guidance and recommendations to member associations and their stakeholders, to both
mitigate the consequences of disruptions caused by COVID-19 and ensure that any response
is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about
the most relevant questions in connection with the regulatory consequences of the COVID19 outbreak and identifies solutions for new regulatory matters.
11.
Analysing the concept of a situation of force majeure, the members of the Chamber noted
that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ,
FIFA did not declare that the COVID-19 outbreak was by itself a force majeure situation in
any specific country or territory, or that any specific employment or transfer agreement was
impacted by the concept of force majeure.
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12.
In other words, in any given dispute, it is for a party invoking force majeure to establish the
existence of said event under the applicable law/rules as well as the consequences that
derive in connection thereto. The analysis of whether a situation of force majeure existed
has to be considered on a case by-case basis, taking into account all the relevant
circumstances.
13.
In this respect, following the FIFA COVID-19 Guidelines, the Chamber noted that Unilateral
decisions to vary agreements will only be recognised where they are made in accordance
with national law or are permissible within CBA structures or another collective agreement
mechanism and that, in particular, When assessing whether a decision is reasonable, the DRC
or the PSC may consider, without limitation whether the club had attempted to reach a
mutual agreement with its employee(s).
14.
However, in the matter at stake, the Chamber observed that there is no evidence that the
club tried to negotiate in good faith any deduction for the amount due on 5 July 2020.
15.
As a result, the Chamber established that the Respondent was not in a position to deduct
any of the claimed amounts.
16.
Consequently, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant, the total
outstanding amount of USD 1,098,763.60, as agreed in item 4 of the contract concluded on
19 January 2020.
17.
Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest
p.a. over said amount as from the expiration of the deadline granted in his default notice
(i.e. 31 August 2020).
18.
In continuation, taking into account the previous considerations u, the DRC 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.
19.
The DRC established that by virtue of art. 12bis par. 4 of the Regulations he has competence
to impose sanctions on the Respondent. Therefore, and in the absence of the circumstance
of repeated offence, the DRC decided to impose a warning on the Respondent in accordance
with art. 12bis par. 4 lit. a) of the Regulations.
20.
Furthermore, taking into account the previous considerations, the Dispute Resolution
Chamber 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.
21.
In this regard, the Dispute Resolution Chamber 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
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amounts are paid and for the maximum duration of three entire and consecutive
registration periods.
22.
Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.
23.
Finally, the Dispute Resolution Chamber 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.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sekou Sanogo, is accepted.
2.
The Respondent, Ittihad FC, has to pay to the Claimant, the outstanding amount of USD
1,098,763.60 plus 5% interest p.a. as from 31 August 2020 until the date of effective
payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
6.
A warning (art. 12 bis) is imposed on the Respondent.
7.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. 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. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the
due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
8.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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) 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 20 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
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