F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2020-2021) – fifa.com – atto non ufficiale – Decision 29 September 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 September 2020,

regarding an employment-related dispute concerning the player Youcef Sekour

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman Roy Vermeer (Netherlands), member José Luis Andrade (Portugal), member

CLAIMANT:

Youcef Sekour, France

Represented by Ms Sarah Zahraoui

RESPONDENT:

Al Yarmouk, Kuwait

I. FACTS OF THE CASE

1. On 21 July 2019, the Claimant and the Respondent concluded an employment contract valid from 1 August 2019 until 31 May 2020.

2. Art. 4 of the contract stipulated that the Claimant was entitled to receive a monthly salary of KD 3,600 “at the end of every month”

3. Art. 9 foresaw that the Respondent had to provide “a suitable accommodation” to the Claimant, and art. 10 indicated that the Respondent had to provide to the Claimant an “economy travelling ticket during the contract from and to home”.

4. According to art. 6 of the contract, “Subject to the second party for the duration of the experiment 100 days shall be entitled to the first party which terminate the contract without giving any reasons and without obligation in return of warning.”

5. The Claimant explained that in or around September 2019, he sustained a back injury and that as a result, on 26 October 2019, the Respondent expressed its will to terminate the contract on the basis of art. 6, which was dismissed by the Claimant on 27 October 2019.

6. The Claimant indicated that the Respondent backed down, but that in the meantime he had made several requests for the regularisation of his situation in view of the fact that he was still not in possession of a residency card and was playing under a “tourist visa”. In this respect, the Claimant indicated that he was asked to go to Paris in order to take the relevant administrative steps (blood test, appointment at the Kuwait embassy, etc.) at his own costs, something he accepted and returned to France for 3 weeks. The Claimant indicated that the Respondent only reimbursed EUR 70 for the blood test.

7. Following the suspension of the Kuwaiti league by the Kuwait FA on 23 March 2020, the Claimant stated that the Respondent summoned its 5 foreign players, with the Respondent wishing to pay any amount due up to 15 March 2020.

8. On 9 April 2020, the Claimant put the Respondent in default of his salaries of February and March 2020 and gave 10 days to comply. In addition, the Claimant disapproved the aforementioned Respondent’s proposal and demanded that the Respondent formally expressed his position as to the upcoming salaries of April and May 2020. The Claimant inter alia stated the following: “it has been decided on your own initiative and therefore without my client’s consent to reduce of 75% the due salaries for April and may (1.8000,00 KD). Despite the fact that my client was willing to have an open discussion to find a consensus, this decision to drop the mentioned months salaries is of course unacceptable.”

9. The Claimant indicated that in reply the respondent explained that it had no overdue remuneration towards the Claimant for February and March 2020, and offered the following two solutions to the Claimant:

“- Cancellation of the contract between the Club and the player. The Club will pay his full due up to the date of the 4/15/2020.

-The contract is temporary cancelled and a monthly sum is disbursed to the player from the date of 1/3/2020 until the start of the sporting activity, amounting to 400 K.D provided and the player and the player will take his full salary until the end of the sports season.”

10. On 12 April 2020, the Claimant stated that his salaries of February and March 2020 were due and rejected the two options proposed by the Respondent and counter-proposed the following:

“1. To reduce of 30% his salary of May, which represents 1.080 K.D (an amount of 3.472,00$)

2. Sign an agreement which proposes to: cancel temporary salaries of April and May, extend the contract of the player until the end of the season (date still unknown) and report this two months of salaries when the championship will rev back into gear. The club must inform the player when the date of resumption will be taken by the Federation of football of the State of Kuwait.”

11. On 1 May and 1 June 2020, the Claimant put the Respondent in default of unpaid salaries and rents.

12. The Claimant declared that on 10 June 2020 the Respondent replied by indicating that it would comply with its request regarding the unpaid salaries and rents only if he accepts to give up his salary of May 2020.

13. The Claimant replied that he would do so but only accepted the payment of 50% of his salary of May 2020, to which the Respondent did not reply.

14. The Claimant considered that the Respondent has delayed his remuneration since February 2020, first denying having any debt, and then by making inappropriate settlement proposals to the Claimant: first, by offering to reduce his salary of 75% during March, April and May 2020 and then by making an offer that did not take into consideration the fact that his contract was expiring on 31 May 2020.

15. In addition, the Claimant underlined that he had “multiplied” conciliation attempts, to no avail.

16. Furthermore, the Claimant emphasised that the Respondent was already in debt of the salary of February 2020 before the suspension of the Kuwaiti league on 23 March 2020.

17. In his claim, the Claimant requested that the Respondent be ordered to pay the total amount of KD 15,645.750, as well as 5% interest p.a. and that sanctions under 12bis and 14bis of the FIFA Regulations would be applied.

18. Despite having invited to do so, the Respondent did not provide an answer to the claim.

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. In this respect, it took note that the present matter was submitted to FIFA on 15 June 2020. Taking into account the wording of art. 21 of the 2020 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed 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 (edition June 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake. The matter concerns an employment-related dispute with an international dimension between a French player and a Kuwaiti club.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the claim was lodged on 15 June 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

5. Having said this, the DRC acknowledged that the parties concluded an employment contract on 21 July 2019, valid as from 1 August 2019 until 31 May 2020, according to which the Claimant was entitled to receive a monthly salary of Kuwait Dinar (KWD) 3,600. Moreover, the Claimant was entitled to a “suitable accommodation” and “economy travelling ticket during the contract from and to home”.

6. Furthermore, the DRC took note that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables in the total amount of KWD 15,645.70, corresponding to the unpaid salaries of February, March, April and May 2020 in the amount of KWD 3,600 each, as well as KWD 1,000 as “4 months of rent” and KWD 245.75 as the costs of a flight ticket, plus 5% interest p.a. on the aforementioned amounts.

7. In this context, the members of the DRC noted that – after the Claimant suffered an injury – the Respondent allegedly tried to terminate the contract of the Claimant, however the Claimant did not agree with this. Furthermore, after the suspension of the Kuwaiti league as a result of the COVID-19 pandemic, the Respondent allegedly indicated to its 5 foreign players that it wished to pay any amount as per the contract that fell due until 15 March 2020.

8. In addition, the DRC noted that the Claimant had explained that the Respondent initiated negotiations, wishing to reduce the players’ salaries, however, in spite of an initial attempt by the parties to amicably settle the dispute, the negotiations failed. Based on the foregoing, the members of the Chamber concluded that no unilateral variation to the contract was made.

9. What is more, the members of the DRC took particular note of the fact that, on 9 April, 12 April, 1 May and 1 June 2020, the Claimant put the Respondent in default of payment of his unpaid salaries as described under point 5. above and housing allowance, thereby setting time limits of 10 days.

10. Consequently, the DRC concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least 10 days for the debtor club to comply with its financial obligation(s).

11. Subsequently, the DRC took into account that the Respondent, for its part, only replied to the claim on 20 September 2020, i.e. after the closure of the investigation phase.

12. As a result, in line with art. 9 par. 4 of the Procedural Rules as well as the Chamber’s constant jurisprudence in this regard, the DRC decided not to take into account the reply of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the Claimant.

13. Having said this, the DRC acknowledged that, in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant the monthly salary of KWD 3,600, as well as housing allowance in the amount of KWD 250 per month and the costs of a flight ticket in the amount of KWD 245.75.

14. Taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence.

15. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit to the Claimant the total amount of KWD 15,645.75, the unpaid salaries of February, March, April and May 2020 in the amount of KWD 3,600 each, as well as KWD 1,0000 as “4 months of rent” and KWD 245.75 as the costs of a flight ticket.

16. In addition, the DRC established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

17. Consequently, the members of the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of KWD 15,645.75.

18. In addition, taking into consideration the Claimant’s request, the members of the Chamber decided to award the Claimant 5% interest p.a. on the above-mentioned amount as as from 15 June 2020 until the date of effective payment.

19. In continuation, taking into account the consideration under number II./14. above, the Chamber 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.

20. The DRC established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. On account of the above and bearing in mind the circumstances surrounding the present case, as well as the lack of a previous offence committed by the Respondent during the two years prior to the date on which the present case was submitted to the Chamber, the DRC decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

21. Moreover, the DRC 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.

22. The Dispute Resolution Chamber concluded its deliberations in the present matter stipulating that any further claim lodged by the Claimant is rejected. In conclusion, the Claimant’s claim is partially accepted.

23. Furthermore, taking into account the consideration under number II./3. above, the 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.

24. In this regard, the 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 amounts are paid and for the maximum duration of three entire and consecutive registration periods.

25. Therefore, bearing in mind the above, the DRC 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.

26. Finally, the 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.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Youcef Sekour, is accepted.

2. The Respondent, Al Yarmouk, has to pay to the Claimant, the following amount:

- KD 15,645.75 as outstanding remuneration plus 5% interest p.a. as from 15 June 2020 until the date of effective payment.

3. A warning is imposed on the Respondent

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 psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. 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.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE FINDINGS OF THE DECISION:

In accordance with arts. 15 and 18 of the Procedural Rules, this correspondence only communicates the findings of the decision without grounds.

Should any of the parties wish to receive the grounds of the decision, a written request must be received by FIFA, within 10 days of receipt of notification of the findings of the decision. Failure to do so within the stated deadline will result in the decision becoming final and binding and the parties being deemed to have waived their rights to file an appeal.

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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