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 10 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 10 February 2020,

by

Daan de Jong (The Netherlands)

on the claim presented by the player,

Zouhair Ouchen, Morocco,

represented by Ms Sarah Zahraoui

as Claimant

against the club,

Al Salmiya Sporting Club, Kuwait

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 24 July 2017, the Moroccan player Zouhair Ouchen (hereinafter: the Claimant or the player) and the Kuwaiti club, Al Salmiya Sporting Club (hereinafter: the Respondent or the club) concluded an employment contract (hereinafter: contract), valid as from 1 August 2017 until 30 June 2018.

2. On 10 October 2017, the parties signed a termination agreement, according to which the club had to pay to the player the amount of USD 34,000.

3. On 10 February 2019, the player lodged a claim in front of FIFA against the club due to its nonfulfillment of its financial obligations arising from the above-mentioned termination agreement.

4. On 15 April 2019, the parties signed a settlement agreement (hereinafter: the agreement). In accordance with the agreement, the Respondent was obliged to make the following payments to the player:

- USD 12,000 by no later than 31 May 2019;

- USD 12,000 by no later than 31 July 2019;

- USD 12,000 by no later than 30 September 2019.

5. Further, the agreement contained the following clause: “If the club doesn’t pay one of the instalments within the prescribed above mentioned deadlines, for some reason that is and without prior formal notice to the player, the club is indebted without delay of the total sum remaining due increased by an interest at 5% per annum from the date of eligibility if the instalment not paid until the date of effective payment and with a supplementary fix penalty amounting to USD 5,000”.

6. On 18 June 2019, after several reminders from the Claimant, the Respondent paid the first instalment. The Respondent invoked administrative issues as the reason why the payment was delayed. The Respondent paid the second instalment on 11 July 2019, and the third on 30 September 2019.

7. On 9 August 2019, the player lodged a claim in front of FIFA against the club requesting payment of USD 5,000 as penalty fee since the first instalment was paid late.

8. In its reply, was paid late due to administrative issue.

II. Considerations of the Dispute Resolution Chamber (DRC) judge

1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 9 August 2019. Consequently, 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 of the Procedural Rules).

2. Subsequently, the DRC judge noted that, in accordance with art. 24 par. 1 and 2. in combination with art. 22 lit. b) of the aforementioned Regulations on the Status and Transfer of Players (edition January 2020), the DRC judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Moroccan player and a Kuwaiti club.

3. Furthermore, the DRC judge 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 January 2020), and considering that the present claim was lodged on 9 August 2019, the June 2019 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

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

5. First, the DRC judge noted that the parties entered into an agreement on 15 April 2019, according to which the Respondent committed to pay the Claimant the following amounts

- USD 12,000 by no later than 31 May 2019;

- USD 12,000 by no later than 31 July 2019;

- USD 12,000 by no later than 30 September 2019.

6. In this context, the DRC judge took note of the following clause as part of the agreement: “If the club doesn’t pay one of the instalments within the prescribed above mentioned deadlines, for some reason that is and without prior formal notice to the player, the club is indebted without delay of the total sum remaining due increased by an interest at 5% per annum from the date of eligibility if the instalment not paid until the date of effective payment and with a supplementary fix penalty amounting to USD 5,000”.

7. Furthermore, the DRC duly noted that the Respondent performed the payment of the first instalment in the amount of USD 12,000 on 18 June 2019 only, namely after that the Claimant had put the club in default.

8. With the above in mind, the DRC judge proceeded to examine the positions of the parties and took note that the Claimant considered that the penalty of USD 5,000, in accordance with the agreement was due.

9. Moreover, the DRC judge noted that the Respondent held that the late payment occurred due to an administrative issue.

10. On account of the above and, in particular, the diverging positions of the parties, the DRC judge considered that the central issue of present dispute consists in assessing whether the penalty stipulated in the agreement is applicable and, in case, to what extent.

11. In this respect, the members of the Chamber, before going into the merit of the aforementioned issue, wished to recall that the Respondent indeed fulfilled its obligation, even though with delay, to provide the Claimant with the payment of the instalments due from the agreement and, thus, in accordance with the general legal principle of pacta sunt servanda.

12. Subsequently, the Chamber focussed its attention on the penalty clause contained in the agreement (cf. point I.5. above), in light of the Respondent having paid the first instalment of USD 12,000 after the relevant deadline for payment had fallen due and the Claimant’s pertinent request.

13. In this context, the DRC judge referred to its constant jurisprudence, in accordance with which penalty clauses may be freely entered into by the parties and may be considered acceptable, in the event that the pertinent written clause meets certain criteria, such as proportionality and reasonableness. In this respect, the DRC judge further highlighted that, in order to determine as to whether a penalty clause is to be considered acceptable, the specific circumstances of the relevant case brought before it shall also be taken into consideration.

14. In the specific case at hand, the members of the DRC judge took into account the business experience of the Respondent and the interest of the Claimant by timely receiving the outstanding amounts. The DRC judge concluded that, with regard to these criteria, the Respondent did not present any evidence that could lead to the conclusion that the Respondent had valid reasons for the late payment of the agreed amount.

15. In the specific case at hand, the members of the DRC judge deemed that the penalty fee of USD 5,000, which the parties contractually agreed upon in the context of settling their dispute, is both proportionate and reasonable in the case at hand, since it represents 13.8% of the total payment due according to the agreement.

16. On account of all of the above, the DRC judge decided that the contractual penalty fee is valid and applicable in the present matter and that the Respondent is liable to pay to the Claimant the amount of USD 5,000 in accordance with the agreement.

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

18. 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.

19. 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.

20. 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.

III. Decision of the Dispute Resolution Chamber (DRC) judge

1. The claim of the Claimant, Zouhair Ouchen, is accepted.

2. The Respondent, Al Salmiya Sporting Club, has to pay to the Claimant the amount of USD 5,000.

3. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2. above.

4. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

5. In the event that the amount due in accordance with point 2. 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 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

6. The ban mentioned in point 5. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

Player Zouhair Ouchen, Morocco / Club Al Salmiya Sporting Club, Kuwait 7

7. In the event that the amount due in accordance with point 2. above 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

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