F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2020-2021) – fifa.com – atto non ufficiale – Decision 9 December 2020

Decision of the

Dispute Resolution Chamber (DRC) Judge

passed in Zurich, Switzerland, on 9 December 2020,

regarding an employment-related dispute concerning the player Patrick Amour Tignyemb

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

PATRICK AMOUR TIGNYEMB, Cameroon

RESPONDENT:

CHIPPA UNITED FC, South Africa

Represented by Mr. Lyrique du Plessis

I. FACTS OF THE CASE

1. The Cameroonian player, Patrick Amour Tignyemb (hereinafter: the player or the Claimant) and the South African club, Chippa United FC (hereinafter: the club or the Respondent) were bound by an employment contract valid as from 1 July 2019 until 30 June 2021 (hereinafter: the contract).

2. The contract contained a jurisdiction clause in favour of the National Soccer League Dispute Resolution Chamber (hereinafter: the NDRC of South Africa).

3. On or about 26 February 2020, the parties concluded a mutual termination agreement (hereinafter: the termination agreement).

4. According to clause 2 of the termination agreement, the club was to pay the player the following amounts:

a. South African Rands (ZAR) 350,000 net on/before 29 February 2020,

b. ZAR 350,000 net on/before 31 March 2020,

c. ZAR 100,000 net on/before 30 April 2020,

d. ZAR 100,000 net on/before 31 May 2020,

e. ZAR 100,000 net on/before 30 June 2020.

5. Clause 7 of the termination agreement provides the following: “In the event that Chippa United FC fail to meet its obligations as stipulated in this agreement, this agreement shall fall away and the initial value of [ZAR] 2,700,000 (…) shall become the amount owed to TIGNYEMB and enforceable. The [ZAR] 2,700,000 amount shall exclude payment already made by Chippa United FC after the signature of this contract”.

6. The termination agreement bears no jurisdiction clause.

7. On 7 July 2020, the player’s legal representatives sent a letter to the club demanding payment of the amount of ZAR 2,200,000 within the next 10 days.

II. PROCEEDINGS BEFORE FIFA

8. On 28 July 2020, 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

9. The player explained that following the conclusion of the termination agreement, he received the following amounts from the club:

a. ZAR 100,000 at the end of February 2020,

b. ZAR 100,000 at the end of March 2020,

c. ZAR 100,000 at the end of April 2020,

d. ZAR 100,000 at the end of May 2020,

e. ZAR 100,000 at the end of June 2020.

10. Thus, at the end of June 2020, the player is of the position the club had only paid him ZAR 500,000 out of the ZAR 1,000,000 due in accordance with the termination agreement.

11. Despite the default notice sent on 7 July 2020, the player argued club did not proceed to any further payment.

12. The player requested inter alia the following relief.

a. ZAR 2,200,000 net in overdue payables,

b. 5% interest on ZAR 2,600,000 net as from 1 March 2020 until 31 March 2020,

c. 5% interest on ZAR 2,500,000 net as from 1 April 2020 until 30 April 2020,

d. 5% interest on ZAR 2,400,000 net as from 1 May 2020 until 31 May 2020,

e. 5% interest on ZAR 2,300,000 net as from 1 June 2020 until 30 June 2020,

f. 5% interest on ZAR 2,200,000 net as from 1 July 2020 until effective payment.

b. Position of the Respondent

13. The Respondent argued that FIFA is not competent to hear the dispute, and argued that “To that end and to summarize, the parties in their Employment Contract expressly opted for the competence of the national arbitration tribunal which in this case, the NSL DRC. Furthermore, the Termination Agreement is silent on jurisdiction, however, the CBA fills this gap in that, it is clearly stipulated within the framework of the Collective Bargaining Agreement that an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs has been established at national level through the National Soccer League in South Africa. Furthermore, the NDRC guarantees fair proceedings with equal representation between clubs and players”.

14. As to the substance, the club argued that the player had orally agreed to change/vary the terms of the termination agreement. The club submitted as follows:

“On or about 31 March 2020, the parties varied the terms of the aforementioned Termination Agreement by way of an Oral Agreement. The material terms of the Oral Agreement/ and or variation were as follows:

The amounts agreed in the Termination Agreement will be varied and replaced;

Chippa United Football Club would pay R100,000.00 each month for a period of four months until the end of June 2020; and

The remainder of the R500,000.00 shall be paid within 7 days of when the NSL pays out its annual preparation fees12 to all its member clubs. The NSL will usually effect payment of the said preparation fees at the end of June 2020”.

15. Pursuant to such variation, the Respondent held that it “has paid R500,000.00 in total to the Claimant as depicted above. This fact is undisputed. The amount outstanding is R500,000.00”.

16. The Respondent requested the following:

“a) Dismiss the present claim as the FIFA DRC lacks jurisdiction to adjudicate on the present matter;

However, in the event that the FIFA DRC admits the present claim:

b) Dismiss all the allegations put forward by the Claimant for lack of legal basis;

In any event:

c) Order the Claimant to bear any and all costs and fees of the present claim;

d) Order Claimant to pay Chippa United Football Club a contribution towards legal fees and other expenses incurred in connection with the proceedings”.

c. Rejoinder of the Claimant

17. The Claimant rejected the argumentation put forward by the Respondent and insisted on the competence of FIFA. The Claimant argued as follows:

a. He is not bound by the NSL Handbook nor SAFA prescripts nor the CBA on account of the fact that with the termination agreement he was no longer registered nor employed by the club and hence does not meet the definition of “professional footballer” under the CBA;

b. The NDRC of South Africa does not comply with Circulars 1010, 1129, 1171 and the FIFA NDRC minimum requirements, on account of the fact that the proceedings are not free of charge on appeal level, and that on appeal the arbitrator is appointed by SAFA therefore not meeting the requirement of equal representation; also, the player refereed to the fact that SAFA is not a party to the CBA.

18. As to the substance, the player denied that he orally agreed to vary the termination agreement and argued that the club filed no evidence of such allegation. The player further argued that the club admitted to owe him the amounts sought.

19. The player reiterated his request for relief.

d. Final comments by the Respondent

20. The Respondent reiterated that the NDRC of South Africa is competent to hear the dispute and that the FIFA DRC has no jurisdiction. To this end, the Respondent is of the position that a reference to such body was “directly included into the collective bargaining agreement. As such, the one of the pre-requisites of Art. 22(b) have been met”.

21. The Respondent went on to state that the bodies pertaining to the NDRC South Africa meet the requirements of the FIFA NDRC Regulations and FIFA Circular 1010. Nevertheless, it admitted as follows:

“The NSL DRC does, however, charge an administrative fee of ZAR 1,000 (One Thousand Rand) which equates to approximately 60 United States Dollars. It should be noted that this fee is an administrative fee and does not amount to procedural costs. Furthermore, the administrative fee is extremely small and cannot be seen as prejudicing any parties who wish to submit a dispute before the NSL DRC but rather to limit or prevent frivolous claims.

Furthermore, and as already established above, SAFA Arbitration Tribunal is an appeal body. To lodge an appeal before the SAFA Arbitration Tribunal, a cost of ZAR 35,000 (Thirty-Five Thousand Rand) is levied which equates to approximately 2100 (Two Thousand One Hundred USD). This fee covers the entire appeal proceedings and may be refundable upon a party successfully appealing its case.”

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

a. Competence

22. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC Judge or 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 28 July 2020 and submitted for decision on 9 December 2020. Taking into account the wording of art. 21 of the October 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.

23. Subsequently, the Judge 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. b) of the Regulations on the Status and Transfer of Players (edition October 2020), he is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Cameroonian player and a South African club.

b. Admissibility

24. However, the Judge acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of the CBA executed between the relevant entities of South African football. On the other hand, the Judge further noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent.

25. While analysing whether he was competent to hear the present matter, first and foremost, the Judge deemed it of utmost importance to highlight that the termination agreement – the legal document at the centre of the dispute – does not contain any jurisdiction clause. Hence, the DRC Judge came to the natural conclusion that the termination agreement clearly does not refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. It suffices that in the absence of any jurisdiction clause, the parties have clearly refrained from choosing a particular forum to the detriment of the FIFA Dispute Resolution Chamber for their dispute to be heard.

26. In view of all the above, the Judge established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that he is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

c. Applicable legal framework

27. Subsequently, the 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 Player (edition October 2020), and considering that the present claim was lodged on 28 July 2020, the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

d. Burden of proof

28. The Judge 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, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

29. In this respect, the DRC Judge 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.

e. Merits of the dispute

30. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Single Judge 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.

31. Having said this, the DRC Judge acknowledged that the Claimant and the Respondent signed a termination agreement, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the following:

a. ZAR 350,000 net on/before 29 February 2020,

b. ZAR 350,000 net on/before 31 March 2020,

c. ZAR 100,000 net on/before 30 April 2020,

d. ZAR 100,000 net on/before 31 May 2020,

e. ZAR 100,000 net on/before 30 June 2020.

32. The Judge further noted that in case the Respondent failed to timely pay the amounts agreed, the player would be entitled to collect ZAR 2,700,000 in line with the acceleration clause of said termination agreement, discount any payments eventually performed.

33. The DRC Judge further observed that the player has acknowledged receipt of the following amounts:

a. ZAR 100,000 at the end of February 2020,

b. ZAR 100,000 at the end of March 2020,

c. ZAR 100,000 at the end of April 2020,

d. ZAR 100,000 at the end of May 2020,

e. ZAR 100,000 at the end of June 2020.

34. In this context, the DRC Judge took particular note of the fact that, on 7 July 2020, the Claimant put the Respondent in default of payment of ZAR 2,200,000, setting a time limit of 10 days in order to remedy the default.

35. Consequently, the DRC Judge 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 ten days for the debtor club to comply with its financial obligation(s).

36. Subsequently, the DRC Judge took into account that the Respondent, for its part, held that the parties had orally agreed to vary the terms of the termination agreement, something denied by the player.

37. In this regard, the DRC Judge considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant insofar as the Respondent has not filed any evidence of said oral agreement, failing hence to meet its burden of proof under the cited art. 12 par. 3 of the Procedural Rules.

38. Consequently, the DRC Judge decided to reject the argumentation put forward by the Respondent in its defence.

39. On account of the aforementioned considerations, the DRC Judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of ZAR 2,200,000 corresponding to the unpaid portion of the acceleration clause (i.e. clause 7) of the termination agreement.

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

41. Consequently, the DRC Judge 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 ZAR 2,200,000.

42. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC Judge decided that the Respondent must pay to the Claimant interest of 5% p.a., as follows:

a. 5% interest p.a. on the amount of ZAR 2,600,000 net as from 1 March 2020 until 31 March 2020;

b. 5% interest p.a. on the amount of ZAR 2,500,000 net as from 1 April 2020 until 30 April 2020;

c. 5% interest p.a. on the amount of ZAR 2,400,000 net as from 1 May 2020 until 31 May 2020;

d. 5% interest p.a. on the amount of ZAR 2,300,000 net as from 1 June 2020 until 30 June 2020.

43. In continuation, the DRC 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.

44. The DRC Judge established that in 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 Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

45. In this respect, the DRC Judge wished to highlight 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.

46. Furthermore, the DRC Judge 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.

47. In this regard, the DRC Judge 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.

48. Therefore, bearing in mind the above, the DRC Judge 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.

49. Finally, the DRC 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. 24bis par. 3 of the Regulations.

f. Costs

50. The Judge 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, he decided that no procedural costs were to be imposed on the parties.

51. Likewise and for the sake of completeness, the Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. The claim of the Claimant, PATRICK AMOUR TIGNYEMB, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, CHIPPA UNITED FC, has to pay to the Claimant the following amounts:

- ZAR 2,200,000 as outstanding remuneration plus 5% interest p.a. on said amount as from 1 July 2020 until the date of effective payment;

- 5% interest p.a. on ZAR 2,600,000 as from 1 March 2020 until 31 March 2020;

- 5% interest p.a. on ZAR 2,500,000 as from 1 April 2020 until 30 April 2020;

- 5% interest p.a. on ZAR 2,400,000 as from 2 May 2020 until 31 May 2020;

- 5% interest p.a. on ZAR 2,300,000 as from 1 June 2020 until 30 June 2020.

4. A warning is imposed on the Respondent.

5. 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.

6. 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).

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. The decision is rendered free of 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.

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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