Dispute Resolution Chamber
Texto da decisão
REF FPSD-2064
Decision of the
Dispute Resolution Chamber
passed on 11 June 2021 via circulars
regarding an employment-related dispute concerning the player Saphir Sliti Taider
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Saphir Sliti Taider, France
Represented by Mr Guy San Bartolome Sarrey
RESPONDENT:
Al Ain FC, Saudi Arabia
Represented by R&A Sports Law
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I.
FACTS OF THE CASE
1.
On 16 October 2020, the French player, Mr Saphir Sliti Taider (hereinafter: the player or the
Claimant), and the Saudi club, Al Ain FC (hereinafter: the club or the Respondent) concluded
an employment contract.
2.
Thereafter, on 5 February 2021, the parties concluded a termination agreement
(hereinafter: the termination agreement), whereby the club undertook to pay to the player
the amount of EUR 960,000 net, as follows:
EUR 350,000 by 15 February 2021;
EUR 350,000 by 15 March 2021;
EUR 260,000 by 15 April 2021
3.
In accordance with clause 1 of the termination agreement, the parties agreed that, should
the club not pay any of the aforementioned instalments on their due dates: 1.) the full
amount of the termination agreement would be due (acceleration clause); 2.) a default
interest of 10% p.a. shall be paid on the outstanding moneys due by the club (default
interest contractually agreed) as “from the date of eligibility of the instalment until the date
of effective payment”; and the club shall pay a fixed penalty of EUR 50,000 to the player;
all of the aforementioned, provided that the player put the Respondent in default of
payment, granting the latter a 10 days deadline to remedy the default and the Respondent
failed to do so.
4.
By means of his correspondence dated 2 March 2021, the player put the club in default of
payment in the amount of EUR 350,000, thereby granting the club a deadline until 12
March 2021 to remedy the default, warning the club that, should it not comply with the
aforementioned payment, the player would lodge a claim against it for the whole amount
of the termination agreement, plus the default interest and the penalty contractually
agreed; however, to no avail.
II.
PROCEEDINGS BEFORE FIFA
5.
On 17 March 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
6. In his claim, the Claimant requested to be awarded outstanding remuneration in the total
amount of EUR 1,010,000 net, plus 10% interest p.a. on the amount of EUR 960,000, as
from 16 February 2021 until the date of effective payment, broken down by the player as
follows:
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EUR 960,000 corresponding to the whole value of the termination agreement, which
fell due upon non-compliance of the payment of the first instalment thereof, despite
the player having put the club in default of payment ex. clause 1 of the termination
agreement (acceleration clause);
EUR 50,000 corresponding to the penalty agreed under clause 1 of the termination
agreement.
7. Furthermore, the Claimant held that despite having put the club in default of payment in
accordance with clause 1 of the termination agreement, the latter failed to comply with its
financial obligations, which triggered the payment of: the whole value of the termination
agreement, the contractually agreed default interest at the rate of 10% p.a. and the penalty
of EUR 50,000.
b.
Position of the Respondent
8.
In its reply to the claim, the Respondent admitted not having paid any of the instalments
due to the player as per the termination agreement.
9.
In this context, the club held that the financial impact of the Covid-19 pandemic prevented
the club from complying with its financial obligations towards the player.
10.
The club argued that art. 12bis shall not apply to the present proceedings, insofar the
default notice sent by the Claimant was only sent on 2 March 2021, i.e. before the 30 days´
time limit provided by art. 12bis had expired since the date on which the first instalment of
the termination agreement fell due.
11.
In addition, the Respondent argued that the default interest to which the Claimant would
eventually be entitled can only be awarded with regards to the first instalment, since the
wording of clause 1 of the termination agreement explicitly states that the contractually
agreed default interest shall run as from the date of eligibility of the instalment, i.e. as from
each of their due dates.
12.
Moreover, the Respondent argued that the contractually agreed penalty of USD 50,000 is
excessive, contrary to the jurisprudence of both, FIFA and CAS, and –if granted– the general
principle of law, non bis in idem, would be contravened, insofar the Respondent would be
punished twice for its non-compliance with the terms of the termination agreement: one
time with the default interest and a second time with the penalty.
13.
In its request for relief, the Respondent summarized its position and rejected the claims of
the Claimant regarding: the application of art. 12bis, the application of the default interest
of 10% p.a. on all of the instalments of the termination agreement as per the due date of
the first instalment thereof and the entitlement of the Claimant to receive the penalty of
EUR 50,000.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
14.
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 17 March 2021 and submitted
for decision on 11 June 2021. Taking into account the wording of art. 21 of the February
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.
15.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between an French player
and a Saudi club.
16.
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 Player (edition February 2021), and
considering that the present claim was lodged on 17 March 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
17.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
18.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
19.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC emphasised that in the following considerations
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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
20.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the petitum of the Claimant, who requested to be awarded outstanding
remuneration in the total amount of EUR 1,010,000 net, plus 10% interest p.a. on the
amount of EUR 960,000, as from 16 February 2021 until the date of effective payment.
21.
The Chamber further acknowledged that the player argued that, following the noncompliance of the club regarding the payment of the first instalment of the termination
agreement, he put the club in default of payment, granting the latter a 10 days´ deadline
to remedy the default, ex. clause 1 of the termination agreement; to no avail.
22.
In this context, continued the Chamber, the player maintained that, by not paying the first
instalment of the termination agreement within the granted deadline, clause 1 of the
termination agreement was activated and the player was entitled to receive the whole
amount of the termination agreement (acceleration clause), the contractually agreed
default interest of 10% on the outstanding amounts and a penalty of EUR 50,000.
23.
The DRC noted that, on its part, the club acknowledged being in default of payment of the
whole value of the termination agreement, default that the Respondent attributes to the
financial impact of the Covid-19 pandemic. As to the claim of the player –continued
acknowledging the Chamber– the club maintained that art. 12bis shall not apply, since the
Claimant put the club in default of payment only once, on 2 March 2021, i.e. before the
time limit of 30 days has elapsed since the first instalment fell due.
24.
Additionally, the DRC noted that the Respondent stressed that the default interest shall not
be granted concerning the second and third instalments of the termination agreement, but
only regarding the first instalment thereof. Moreover, continued the Chamber, the
Respondent stated that the penalty of EUR 50,000 is excessive and that –if awarded– the
club would be punished twice for the non-compliance of its financial obligations (one by
being ordered to pay default interest and a second one by being ordered to pay the penalty).
25.
The above being explained, the documentation and arguments provided by the parties
having been analysed by the Chamber, the latter wished to emphasize that the club
acknowledged not having paid any of the contractually agreed instalments. In this context,
explained the DRC, it must be noted that the Claimant complied with clause 1 of the
termination agreement by putting the club in default of payment on 2 March 2021 (once
the first instalment of the termination agreement was overdue), thereby granting the
Respondent a 10 days´ deadline to remedy the default.
26.
In view of the above, the DRC determined that the financial consequences agreed between
the parties in clause 1 of the termination agreement were activated, i.e. the obligation of
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the Respondent to pay: the full amount of the termination agreement (acceleration clause),
the agreed default interest of 10% p.a. on the outstanding amounts as from their respective
due dates and a penalty of EUR 50,000.
27.
In addition, stressed the Chamber, it must be noted that the argument of the Respondent
regarding the non-applicability of art. 12bis to the present matter must be upheld, insofar
the Claimant put the Respondent in default of payment before the deadline of 30 days
contemplated by art. 12bis had elapsed.
28.
Notwithstanding the above –explained the Chamber–, the argument of the Respondent in
connection with the lack of entitlement of the Claimant to be awarded the contractually
agreed 10% interest p.a. on the whole value of the termination agreement must be
rejected, insofar –by not complying with the payment of the first instalment of the
termination agreement and given that the Claimant duly put the club in default of payment
in accordance with clause 1 thereof–, the acceleration clause was duly activated and the
whole value of the contract became payable. Therefore, the Chamber was of the
unanimous opinion that the Claimant shall be awarded the contractually agreed default
interest of 10% p.a. on the whole value of the termination agreement as from 16 February
2021 (the date following the due date of the first instalment) until the date of effective
payment.
29.
With regards to the argument of the Respondent that the amount of EUR 50,000, i.e. the
contractually agreed penalty, shall not be awarded to the Claimant, insofar it is excessive
and since –if awarded– the Respondent would be punished twice for the same noncompliance, the Chamber concluded that those arguments cannot be upheld, insofar:
1.) A penalty may only be considered excessive –in principle and in accordance with the
jurisprudence of the DRC– if it exceeds 50% of the principal outstanding amount. In the present
case, EUR 50,000 represents a much lower percentage than 50% of the principal outstanding
amount, i.e. EUR 960,000. Hence, the argument of the Respondent regarding the excessiveness
of the penalty agreed cannot be upheld;
2.) In accordance with the jurisprudence the DRC, the nature of the default interest is
compensatory, whereas the nature of the penalty is merely punitive. As a consequence,
amounts concerning both considerations can be simultaneously granted without contravening
the general principle of law, non bis in ídem, provided that no default interest is awarded
regarding amounts granted as penalties.
ii. Consequences
30.
Having stated the above, the members of the Chamber concluded that the Claimant shall
be awarded outstanding remuneration in the amount of EUR 960,000, plus 10% interest
p.a. as from 16 February 2021 until the date of effective payment; as well as a penalty in
the amount of EUR 50,000.
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iii. Compliance with monetary decisions
31.
Finally, taking into account the consideration under number 16. above, the Chamber
referred to par. 1 lit. 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.
32.
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.
33.
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. 24bis par. 2, 4, and 7 of the Regulations.
34.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
35.
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. 24bis par. 8
of the Regulations.
d.
Costs
36.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
37.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Saphir Sliti Taider, is accepted.
2.
The Respondent, Al Ain FC, has to pay to the Claimant, the following amounts:
EUR 960,000 as outstanding remuneration, plus 10% interest p.a. as from 16
February 2021 until the date of effective payment;
EUR 50,000 as penalty.
3.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
4.
Pursuant to article 24bis/article 8 of Annexe 8 of the Regulations on the Status and Transfer of
Players if full payment (including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8/article 8 of Annexe 8 and article 24ter of the Regulations
on the Status and Transfer of Players.
6.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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.
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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:
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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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