FIFA - Decisión disputa Hadji Ba 29112023

REF. FPSD-12359

Decision of the Dispute Resolution Chamber passed on 29 November 2023 regarding an employment-related dispute concerning the player El Hadji Ba

COMPOSITION: Clifford J. HENDEL (France / USA), Deputy Chairperson Angela COLLINS (Australia), member Laurel VAURASI (Fiji), member

CLAIMANT:

El Hadji Ba, France Represented by Stefano La Porta

RESPONDENT:

Apollon Limassol, Cyprus Represented by Alkis Papantoniou pg. 2

REF. FPSD-12359

I. Facts of the case

1. On 13 July 2023, the French player El Hadji Ba (hereinafter: the Claimant or the player) and the Cypriot club Apollon Limassol (hereinafter: the Respondent or the club) entered into a "termination and settlement agreement" to terminate the employment contract by mutual consent with immediate effect (hereinafter: the Contract)

2. Art. 3 of the Contract reads as follows: In consideration of the termination, Apollon and the Player agree and accept that APOLLON shall arrange the payment of the total amount of€ 229 370 net (two hundred and twenty-nine thousand three hundred seventy euro) in total, which will be paid as mentioned below at the personal bank account of the player: 1. € 27 185 payable the 15/7/2023 2. € 27 185 payable the 10/8/2023 3. € 17 500 payable the 31/8/2023 4. € 17 500 payable the 30/9/2023 5. € 17 500 payable the 31/10/2023 6. € 17 500 payable the 30/11/2023 7. € 17 500 payable the 31/12/2024 8. € 17 500 payable the 31/1/2024

9. € 17 500 payable the 28/2/2024 10. € 17 500 payable the 31/3/2024 11. € 17 500 payable the 30/4/2024 12. € 17 500 payable the 31/5/2024

3. Art. 4 of the Contract reads as follows: In case any of the payment referred above is not made strictly within its due date by the club to the player (with a grace period of 8 working days) all remaining payments will become immediately, automatically and jointly due (as an acceleration clause agreed between the parties) and a penalty clause in the amount of 10% ( ten per cent) of the full settlement Amount will have to be paid additionally by the Club to the Player.

II. Proceedings before FIFA

4. On 23 October 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

5. The Claimant states that the Respondent duly paid the first three instalments agreed, while it has failed to pay the fourth instalment, which fell due on 30 September 2023. pg. 3

REF. FPSD-12359

6. The Claimant sustains that “As a result of the Respondent's failure to pay the fourth instalment of the Compensation by 11 October 2023 (i.e. within 8 working days from the due date of 30 September 2023), the Player is entitled to enforce immediately the aforementioned acceleration clause, and claim all the remaining amount of the Compensation due under the Agreement (i.e., € 157,500) plus 5% interest, as well as the penalty of 10% (i.e.,€ 22,937).”

7. The Claimant states that “Given the Player's urgency to have available the money owed to him by the Club, he has not pursued the procedure under article 12bis RSTP, knowing that this does not prevent

him to enforce his rights under the Agreement (see CAS 2020/A/7007).”

8. The Claimant filed the following requests for relief: The Claimant respectfully requests the DRC to accept this statement of claim and order the

Respondent to pay the Claimant:

I. € 157,500, plus 5% per annum interest starting from 1 October 2023 until the date of payment;

II. a penalty of€ 22,937 according to article 4 of the Agreement.

b. Position of the Respondent

9. In its reply, the Respondent insists that the acceleration of the debt was not validly triggered by the Claimant since he did not send a default notice.

10. The Respondent sustains that “If the Player was not required to sent a notice to the Club in order to activate the agreed “grace period”, then the parties would have agreed for the corresponding due dates to be set eight days later (i.e. on 08.10.2023), rather than set the due date on 30.09.2023 and agree on another eight days for the payment, without needing any other actions on the part of the Claimant.”

11. The Respondent further sustains that the acceleration clause is abusive and shall be rejected as an excessive penalty considering the specific circumstances of the case at hand, therefore being invalid and non-enforceable in accordance with Swiss law.

12. The Respondent refers to art. 12bis of the Regulations, according to which the Claimant was obliged to send a notice to the Club in order to activate the grace period.

13. Furthermore, the Respondent deems that the acceleration of debt is “clearly disproportional to the days of delay of payment of the instalment, as well as the number of instalments that fell due and the amount that fell due”. In this regard, the Respondent states that the “total amount equal to EUR 157,500 (and a further penalty of EUR 22,937), the overdue amount towards the player was only 17,500,

delayed for only 23 days, without any notice, warning or reminder sent by the Player and taking into account that until that moment the Club was punctual in the payments arising from the Settlement Agreement, having already paid EUR 71,870 for three instalments”.

14. As to the penalty clause, the Respondent also sustains that it “was not validly activated by the Claimant and contrary to the agreed manner”.

15. The Respondent underscores that “the Club failed to complete a payment of EUR 17,500 for only 23 pg. 4

REF. FPSD-12359 days, without receiving a default notice, a reminder or a warning by the Player before he lodged the claim for the requested penalty. The amount claimed as penalty (EUR 22,937) is equal to 131% of the amount that had fallen due at the time of the claim”.

16. Thus, in the view of the Respondent, the penalty of EUR 22,937 requested by the Claimant is excessive and shall be rejected.

17. Subsidiarily, the Respondent request that the penalty shall be calculated on the basis of the amount remaining due on the basis of the Settlement Agreement, i.e, the amount of EUR 157,500.

18. The Respondent filed the following requests for relief:

1. In view of all the factual and legal arguments presented in the present Response, the Respondent

requests by Your Respectable Chamber: (a) to reject the claim of the Claimant for the acceleration of debt because it was not validly activated and/or because it is excessive and unreasonable; (b) to reject the claim of the Claimant regarding the penalty of EUR 22,937 because it was not validly activated and/or because it is excessive and unreasonable.

2. Subsidiarily and in case our primary requests are rejected, we request by Your Chamber to limit the amount of the penalty to 10% of the amount that remains due from the Settlement Agreement.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

19. First of all, the Dispute Resolution Chamber (hereinafter also referred to as “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 presented to FIFA on 23 October 2023 and submitted for decision on 29 November 2023. Taking into account the wording of art. 34 of the March 2023 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.

20. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (May 2023), it is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a French player and a Cypriot club.

21. Subsequently, the Chamber 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 Players (May 2023 edition), and considering that the present claim was lodged on 23 October 2023, the May 2023 edition of said regulations pg. 5

REF. FPSD-12359

(hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

22. The Chamber 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. c. Merits of the dispute

23. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on 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.

1. Main legal discussion and considerations

24. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the Respondent admits not having paid the 4th instalment which fell due on 30 September 2023, although it deems that since the Claimant has not sent a default notice, the “grace period” and the penalty clause have not been properly activated as per the terms of art. 4 of the Contract.

25. In this context, the Chamber acknowledged that it its task was to determine if the Claimant is entitled to the amounts requested.

26. The Chamber carefully considered the wording of art. 4 of the Contract and observed that the clause provides for a “grace period of 8 working days”. However, the Chamber further observed that it does not provide for any specific requirements for the triggering of such “grace period”.

Thus, the Chamber was convinced by the Claimant’s argumentation and deemed that in the absence of the payment before 11 October 2023, i.e. 8 working days after the due date, the consequences of art. 4 shall apply.

27. The Chamber deemed that following the jurisprudence of the Chamber an “acceleration clause” does not constitute a penalty per se, since its consequence is the immediate accrual of the amounts which would otherwise fall due in the future. The Chamber highlighted that the parties did not agree any specific requirement for the application of the said “acceleration clause”, other

than the non-payment within the original deadline and the grace period.

28. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amount of EUR 157,500.

29. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from 12 October 2023 until the date of effective payment. pg. 6

REF. FPSD-12359

30. Lastly, the Chamber pointed out that the contractual penalty requested. In this regard, the Chamber underlined that art. 4 of the Contract leaves no room for interpretation since it is extremely clear stating that “a penalty clause in the amount of 10% (ten per cent) of the full settlement Amount will have to be paid additionally by the Club”. The DRC considered that EUR 22,937 shall be awarded to the Claimant as contractual penalty insofar it is contractually based, reasonable and proportionate in line with the jurisprudence of the Football Tribunal. Notwithstanding, by recalling the principle of ne bis in idem, the DRC established that no interest should be applicable over the penalty. ii. Compliance with monetary decisions

31. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2 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.

32. In this regard, the DRC 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.

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

34. 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.

35. The DRC 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

36. The Chamber 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 Chamber decided that no procedural costs were to be imposed on the parties.

37. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings. pg. 7

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38. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 8

REF. FPSD-12359

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, El Hadji Ba, is partially accepted.

2. The Respondent, Apollon Limassol, must pay to the Claimant the following amount(s):

• EUR 157,500 as outstanding amount plus 5% interest p.a. as from 12 October 2023 until the date of effective payment; - EUR 22,937 as contractual penalty.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the

enclosed Bank Account Registration Form.

5. 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.

6. 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.

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 9

REF. FPSD-12359

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

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 10