DRC Overdue Payables
Texto da decisão
REF. FPSD-16347
Decision of the
Dispute Resolution Chamber
passed on 29 January 2025
regarding an employment-related dispute concerning the Player Kingsley
Sokari
BY:
Calum BEATTIE (Scotland)
CLAIMANT:
Kingsley Sokari, Nigeria
Represented by Anis Ben Mime
RESPONDENT:
Pharco SC, Egypt
pg. 2
REF. FPSD-16347
I. Facts of the case
1.
On 9 September 2021, the Nigerian player, Kingsley Sokari (hereinafter: the Player or the
Claimant) and the Egyptian club, Pharco SC (hereinafter: the Club or the Respondent) entered
into an employment contract (hereinafter: the Contract) valid as from the season 2021/2022
until the season 2023/2024.
2.
According to the Contract, for the 2023/2024 season, the Claimant was entitled to the
following amounts:
-
USD 40,000 payable on 30 September 2023
-
USD 40,000 payable on 30 October 2023
-
USD 40,000 payable on 30 November 2023
-
USD 40,000 payable on 30 December 2023
-
USD 40,000 payable on 30 January 2024
-
USD 40,000 payable on 28 February 2024
-
USD 40,000 payable on 30 March 2024
-
USD 40,000 payable on 30 April 2024
-
USD 40,000 payable on 30 May 2024
-
USD 40,000 payable on 30 June 2024
3.
Clause 4.6 of the Contract read as follows: “the player should bear the taxes of this contract
and other remuneration according to the law, the club shall deduct taxes from the player dues
and transfer them to the taxes under his responsibility”.
4.
Clause 6 of the Contract read as follows (handwritten clause):
“Both Parties agreed that the financial and organzatial [sic] executive regulations of
the club’s first football team for all contracting seasons and are deemed an integral
part of those contracts and complementary thereof items mentioned in that
regulation to work accordingly and the new interpretation of some of the regulation’s
provisions and any directors in this regard, without violating the regulations of the
Egyptian Football Association and the international football Association and shall be
biding upon the paties [sic] […]”
pg. 3
REF. FPSD-16347
5.
On 16 September 2024, the Claimant issued a default notice to the Respondent for the
payment of USD 160,000, corresponding to the salaries for February, March, April, and May
2024, and set a 10-day deadline to remedy the default.
II. Proceedings before FIFA
6.
On 1 October 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
7.
The Claimant requested payment of USD 160,000 corresponding to the salaries of February
March, April and May 2024 salaries plus 5% interest as from 28 February 2024.
8.
The Claimant further requested to impose sporting sanctions on the Respondent.
b. Position of the Respondent
9.
In its reply, the Respondent mentioned the following:
“The player received a total of nine installments out of ten installments with a total
amount of (3,600,000$) three hundred and sixty thousand US dollars, and the player
did not received [sic] the tenth installment which was due on 30/6/2024
On 20/6/2024 Due [sic] to poor results and performance which led to the club rushing
to relegation to the second division the technical director (coach) and sport director
submit a report to the board of directors stating a decision to deduct from all the
player on the team 5% of the value of their contract, according to contract additional
conditions and internal regulations signed by all players which stipulated that:
"In case of poor results and performance, the technical director, sports director has
the right to suspend the players entitlements and impose deduction for any reason
after present to Mr. general supervisor and upon the chairman of the board approval"
"the board director has the right to suspend the players entitlements or to change any
terms of the regulations terms at any time if the chairman of sees [sic] to motivate the
player or to impose"
The league competition was supposed to end as usual in end of June [sic], but it was
postponed by nearly two months until it ends on 22 August 2024,
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REF. FPSD-16347
The player was getting his full dues at the end of each month and when the player
knew about the deduction (5%), he asked to leave before the end of the competition,
knowing that the player's contract ends with the end of the football season in Egypt
[sic] And indeed, in light of the struggle to relegation to the lower division, pharco [sic]
Club agreed the player to leave so that he could find and join a new club.”
10. The Respondent requested the following relief:
“As a consequence of all of the above, I herewith request the FIFA DRC to determine
that the Club has overdue payables towards the player kingesly sokari [sic] 5% of his
contract value with amount twenty thousand USD (20000$)”.
11. In support of the above, the Respondent submitted three payment receipts of USD 40,000
each, the Club’s internal regulations, the minutes of the Board of Directors, which
stipulated a 5% deduction applicable to the players, and the Club’s ranking.
c. Rejoinder of the Claimant
12. In his rejoinder, the Claimant confirmed his request for relief and mentioned the following:
•
As to the payment receipts (i) he mentioned that the receipt bears no resemblance
whatsoever to the other payment receipts he has already collected; and (ii) he
requested FIFA to transfer the physical payment bills in order for the Player to verify
such payments, otherwise, he requested to not take into account such payments.
•
Regarding the deduction of the Player's salary, he asserted that the decision was
made unilaterally, without providing him the right to defend himself, and that he
was not informed of this decision. Therefore, the Player contested the Club's
allegations.
d. Final comments of the Respondent
13. The Respondent failed to provide its final comments.
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REF. FPSD-16347
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the 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 1 October 2024 and submitted for
decision on 29 January 2025. Taking into account the wording of art. 31 of the January 2025
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.
15. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (January 2025 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 Nigerian player
and a Egyptian club.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, the Single Judge confirmed that, in accordance
with its art. 29, the January 2025 edition of the Regulations on the Status and Transfer of
Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
17. 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 parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
18. Having established the competence and the applicable regulations, 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 assessing the matter at hand.
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REF. FPSD-16347
i. Main legal discussion and considerations
19. The Single Judge then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute the payment of certain financial obligations by the Respondent
as per the Contract.
20. In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
21. In this regard, the Single Judge first noted that in the case at hand the Respondent bore the
burden of proving that it indeed complied with the financial terms of the Contract
concluded between the parties.
22. Subsequently, the Single Judge observed that the Player requested payment of the last four
instalments. Conversely, the Respondent asserted that it had already paid three out of the
four remaining instalments. Furthermore, the Respondent stated that, according to its
Board's decision, the Claimant's salary for the last instalment was reduced by 5%, thereby
entitling the Claimant to only USD 20,000.
23. In view of the foregoing, the Single Judge commenced by analyzing the payment receipts
provided by the Club, specifically three payment receipts of USD 40,000 each. The Claimant
contended that these receipts did not resemble previous invoices and requested the
original documents to verify such payments. Notably, the Single Judge observed that the
Player did not dispute the authenticity of his signature on the receipts, nor did he provide
evidence of previous payments. Conversely, the Respondent did not address the Player's
last argument.
24. Upon reviewing the submitted evidence, the Single Judge noted that (i) the Player's name
is clearly mentioned on the receipts; (ii) there is a clear indication that the 7th, 8th, and 9th
instalments were paid on 1 April 2024, 28 April 2024, and 2 June 2024, respectively; (iii) each
receipt bears a signature that appears to be the Player. In this respect, the Single Judge
recalled that the Player did not dispute the signatures on them. Therefore, the Single Judge
concluded that the Club had met its burden of proof and had paid the amounts totalling
USD 120,000.
25. Regarding the deduction on the last instalment claimed by the Respondent, the Single
Judge observed that (i) there was an inconsistency in the Club's request for a deduction:
the Club requested a deduction of USD 20,000, which corresponds to 50% of the last
instalment, however, this was not consistent with the deduction of 5% mentioned in the
Club’s response; (ii) the Contract did not stipulate such deductions, (iii) the Player was not
informed of the deduction, which was made unilaterally without the Player's consent, and
(iv) the clause in the Club's internal regulations appears to be potestative, allowing the Club
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REF. FPSD-16347
to deduct the Player's salary at any time and in any amount it decides – which – cannot be
applied, as they limit the rights of the contractual counterparty in an excessive manner and
lead to an unjustified disadvantage of the latter. Therefore, the Single Judge concluded that
such deduction was not applicable.
26. 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 USD 40,000,
i.e. the last instalment of the Contract.
27. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amount as from 1 July 2024 until the date
of effective payment.
ii. Art. 12bis of the Regulations
28. In continuation, 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.
29. To this end, the Single Judge confirmed that the Player put the Club in default of payment
of the amounts sought, which had fallen due more than 30 days before, and granted the
Club a 10-day deadline to cure such breach of contract.
30. Accordingly, the Single Judge confirmed that the Club had delayed a due payment without
a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
31. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the first offense by the Club within the last two years, the Single Judge
decided to impose a warning on the Club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
32. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
33. 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 its decision, the pertinent FIFA
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REF. FPSD-16347
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.
34. 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.
35. 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.
36. 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.
37. 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
38. 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.
39. 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.
40. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-16347
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kingsley Sokari, is partially accepted.
2.
The Respondent, Pharco SC, must pay to the Claimant USD 40,000 as outstanding
remuneration plus 5% interest p.a. as from 1 July 2024 until the date of effective payment.
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 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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-16347
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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