F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 16 August 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 16 August 2019,

in the following composition:

Geoff Thompson (England), Chairman

Eirik Monsen (Norway), member

Johan van Gaalen (South Africa), member

Pavel Pivovarov (Russia), member

Daan de Jong (the Netherlands), member

on the claim presented by the player,

Mohamed Habib Daf, Senegal

represented by Mr Nuno Rego

as Claimant

against the club,

Boavista FC, Portugal

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 28 June 2016, the Senegalese player Mohamed Habib Daf (hereinafter; the Claimant) and the Portuguese club, Boavista FC (hereinafter; the Respondent) signed an employment contract valid as from 1 July 2016 until 30 June 2019.

2. On 23 June 2017, the Claimant and the Respondent signed a termination agreement (hereinafter; the agreement).

3. In accordance with the agreement, the Respondent undertook to pay to the Claimant, inter alia, a compensation of EUR 44,000, payable in three instalments, as follows:

i. EUR 6,000, payable ”at the present date (…)”, i.e. on 23 June 2017;

ii. EUR 8,000, payable “in the 30th July of 2017”;

iii. EUR 30,000, payable “in the 30th November of 2017”.

4. By correspondence dated 14 February 2019, the Claimant put the Respondent in default of payment of EUR 38,000, corresponding to the second and the third instalment, setting a 10 days’ time limit in order to remedy the default.

5. On 19 March 2019, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay to him overdue payables in the amount of EUR 38,000 corresponding to the second instalment, that fell due on 30 July 2017, and to the third instalment, that fell due on 30 November 2017, as per the agreement.

6. In his claim, the Claimant further asked to be awarded “5% annual interest on the amounts due to the Claimant from the date in which the amounts became due until they are effectively and fully paid” and that the Respondent be ordered to pay legal and procedural costs.

7. In addition, the Claimant referred to the general legal principle of “pacta sunt servanda” according to which, from the moment that the Respondent assumed the obligation to pay to the Claimant the agreed amount, i.e. EUR 38,000, it has to fulfill its obligation as per the agreement.

8. In reply to the claim, the Respondent alleged that it had appealed to a Portuguese judicial proceeding in order to recover economically and financially. In support of its allegations, the Respondent provided with the “Portuguese Court decision accepting the appeal to this Special Revitalization Plan”, dated 22 May 2018. Therefore, according to the Respondent, “all debt payment actions are immediately suspended”. The Respondent did not provide comments as to the substance.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) 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 19 March 2019. Consequently, the DRC concluded that the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, (hereinafter: the Procedural Rules), is applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 2 and 3 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 of June 2019), the Dispute Resolution Chamber is competent to deal with the present matter, which concerns an employment-related dispute with an international dimension between a Senegalese player and a Portuguese club.

3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition of June 2019) and considering that the present claim was lodged in front of FIFA on 19 March 2019, the June 2018 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.

4. The competence of the Chamber and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. 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 Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well as the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. In this respect and first of all, the members of the Chamber acknowledged that, on 28 June 2016, the Claimant and the Respondent had concluded an employment contract valid as from 1 July 2016 until 30 June 2019.

7. Equally, the Chamber took note that, on 23 June 2017, the parties had concluded an agreement by means of which the Respondent undertook to pay to the Claimant, inter alia, a compensation of EUR 44,000, and, subsequently, agreed upon the following payment schedule:

“- EUR 6,000, payable ”at the present date (…)”, i.e. on 23 June 2017;

- EUR 8,000, payable “in the 30th July of 2017”;

- EUR 30,000, payable “in the 30th November of 2017“.

8. In continuation, the Chamber observed that the Claimant claimed from the Respondent the amount of EUR 38,000, plus 5 % interest as of the due dates, thereby asserting that the Respondent had not complied with the above-mentioned agreement, as to the second and to the third instalment, and that it had not paid him said amounts despite having duly received the Claimant’s default notice. In addition, the Chamber further took note that the Claimant requested the Respondent to be ordered to pay legal and procedural costs.

9. At this point, the Chamber took note that, for its part, the Respondent requested FIFA to suspend the current proceedings, alleging that, in view of its financial difficulties, it had resorted to the “revitalization plan” in order to recover economically and financially, and, as a consequence, said proceedings having been accepted by “the Portuguese Court”, “all debt payment actions are immediately suspended”.

10. In this respect, the members of the DRC first wished to stress that when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the Chamber emphasized that the main objective of the different FIFA Regulations is to create a standard set of rules to which all the actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. Therefore, the Chamber deemed that it is not appropriate to apply the principles of a particular national law to a dispute brought before it but rather the Regulations on the Status and Transfer of Players, general principles of law and, where existing, the Chamber’s well-established jurisprudence.

11. With respect to the request put forward on behalf of the Respondent to suspend the proceedings in which the Respondent is involved due to the ongoing “revitalization plan”, the Chamber stressed that in accordance with the jurisprudence of both the DRC and the Court of Arbitration for Sport, bankruptcy/insolvency procedures do not affect procedures in front of the DRC. In fact, the Chamber wished to outline that it is only requested to address the recognition of the Claimant’s claim and not the execution of a possible debt. What is more, the members of the Chamber noted that according to the correspondence received on 7 March 2019 from the Federação Portuguesa de Futbol (FPF), the Respondent remains affiliated to the FPF and is participating in the FPF competitions. Consequently, the Chamber decided that there is no reason to suspend the proceedings and that such request has to be dismissed and the claim of the Claimant considered as admissible.

12. In this context, the DRC was eager to emphasise that the parties signed an agreement on 23 June 2017 by means of which the parties agreed that the Respondent would pay to the Claimant the amount EUR 44,000, payable in the following three instalments: EUR 6,000 on 23 June 2017; EUR 8,000 on 30 July 2017 and EUR 30,000 on 30 November 2017.

13. Subsequently, the DRC observed that the Claimant reverted to FIFA indicating that the Respondent had also not fulfilled its obligations as established in the agreement, since it paid to the Claimant the first instalment only. Therefore, the Claimant requested to be paid the alleged outstanding two instalments in the total amount of EUR 38,000, as well as interest at the rate of 5% p.a. on each of the outstanding instalments.

14. Furthermore, the DRC noted that the Respondent had been given the opportunity to reply to the claim submitted by the Claimant, but that the Respondent had failed to present its response as to the substance in this respect, referring only as to its request to suspend the current proceedings. In this way, the DRC deemed that the Claimant’s allegations as to the substance remained undisputed and therefore, that the Respondent accepted said allegations.

15. On account of the aforementioned considerations, the DRC established that the Respondent had failed to pay to the Claimant the amounts as agreed upon the agreement, totalling EUR 38,000. Consequently, the DRC concluded that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the Claimant the amount of EUR 38,000.

16. In continuation and with regard to the Claimant's request for interest, the DRC decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the outstanding partial amounts as follows:

i. 5% p.a. as of 31 July 2017 on the amount of EUR 8,000;

ii. 5% p.a. as of 1 December 2017 on the amount of EUR 30,000.

9. Finally, the Dispute Resolution Chamber held that the Claimant’s claim for legal and procedural costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence.

10. The DRC concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Mohamed Habib Daf, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Boavista FC, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 38,000, plus 5% interest p.a. until the date of effective payment, as follows :

i. as of 31 July 2017 on the amount of EUR 8,000;

ii. as of 1 December 2017 on the amount of EUR 30,000.

4. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned number 3. is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. Any further claim lodged by the Claimant is rejected.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

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). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer