FIFA - Decisiones estatuto del jugador - Caubergh 14022023

REF FPSD-8437

Decision of the Players Status Chamber passed on 14 February 2023 regarding an employment-related dispute concerning the coach Bart Marie

Caubergh BY: Oleg Zadubrovskiy (Russia), Single Judge of the PSC

CLAIMANT:

Bart Marie Caubergh, Belgium Represented by Luis Cassiano Neves; Matilde Costa Dias

RESPONDENT:

Al Ahli, Saudi Arabia

REF FPSD-8437

I. Facts of the case

1. On 1 July 2021, the Belgium coach, Bart Marie Caubergh (hereinafter: the Claimant or coach), and the Saudi Arabian club, Al Ahli (hereinafter: the Respondent or club) signed an employment contract, valid as from 1 July 2021 until 30 June 2022.

2. On 5 March 2022 the Claimant and the Respondent signed a mutual termination agreement (hereinafter: the termination agreement).

3. In accordance with clause 2 of the termination agreement, the Respondent undertook to pay to the Claimant the following: - USD 63,336 net on 10 March 2022. - USD 63,336 net on 30 June 2022.

4. On 7 November 2022, the Claimant put the Respondent in default and requested payment of the outstanding amount of USD 63,336 net, granting it a deadline of 10 days to comply, however to no avail.

II. Proceedings before FIFA

5. On 1 December 2022, 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

6. According to the Claimant, the Respondent has failed to fulfil its obligations arising out of the termination agreement.

7. The requests for relief of the Claimant, were the following:

(i) to order the Respondent to pay to the Claimant the amount of USD 63,336 net, plus 5%

interest p.a. from the due date (ii) to impose sanctions on the Respondent in accordance with Annexe 2 Article 7 of the FIFA RSTP b. Position of the Respondent

8. In its reply, the Respondent, inter alia, argued that: “As follows from the Mutual Termination Agreement, the payments in question had to be arranged for by the Respondent onto the bank account of the Claimant. However, the Respondent never knew the details of the relevant bank account.

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After the Claimant left the Respondent, the latter was not able to verify the payment details with the Claimant as he simply left no contact details for the Respondent. At no time the Claimant provided the Respondent with the details of the relevant bank account. The Claimant has not provided in the Claim any evidence that the Respondent would have allegedly known the details of the bank account where the payment in question had been expected.”

9. In conclusion, the Respondent requested the following relief: “(1) To reject the Claim of the Claimant in full; (2) In the event the above point (1) is dismissed, to establish that if any amount is due and payable by the Respondent to the Claimant, the amount of such payment shall not exceed USD 63.336; (3) To establish that if 5% interest shall be payable by the Respondent on the amount of USD 63.336, such interest shall be calculated from 6 December 2022; (4) Under all circumstances, to establish that no sporting sanctions shall be imposed on the Respondent; (5) Under all circumstances, to order the Claimant to cover the procedural costs in full.”

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III. Considerations of the Players’ Status Chamber

a. Competence and applicable legal framework

10. First of all, the Single Judge of the Players’ Status Chamber (hereinafter also referred to as Single 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 1 December 2022 and submitted for decision on 14 February 2023. Taking into account the wording of art. 34 of the October 2022 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.

11. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 2 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players October 2022 edition), the Single Judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Belgian coach and a Saudi Arabian club.

12. Subsequently, the Single 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 Players (October 2022 edition) and considering that the present claim was lodged on 1 December 2022, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

13. The Single Judge 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. Likewise, the Single Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS).

c. Merits of the dispute

14. His competence and the applicable regulations having been established; the Single Judge

entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments, and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

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1. Main legal discussion and considerations

15. The foregoing having been established, the Single Judge moved to the substance of the matter and took note that the parties strongly dispute the total amount that was outstanding and due to the Claimant as per the termination agreement concluded between the parties on 5 March 2022, namely the outstanding amount of USD 63,336 which was payable on 30 June 2022.

16. In this context, the Single Judge acknowledged that his task was to determine whether the amounts claimed by the Claimant had indeed already fallen due and were to be paid by the Respondent.

17. The Single Judge noted that in its submission, the Respondent argued that the said outstanding amount is not due to the Claimant due to his failure to provide the relevant bank account details in order for it to effect payment.

18. In this regard the Single Judge made reference to the provisions of the termination agreement and mentioned that there is no condition stipulated in the said agreement indicating that bank account information had to be provided by the Claimant in order for the Respondent to make the necessary payments. Moreover, the Single Judge highlighted that the Respondent had not invoked such circumstances to the Claimant, furthermore it had failed to reply to the default notice sent by the Claimant.

19. In this context, the Single Judge mentioned that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

20. In view of all the above, the Single Judge decided to reject the argumentation put forward by the Respondent in its defence.

21. Finally, taken all of the above into account the Single Judge concluded that the Respondent was indeed in arrears of its financial obligations as per the termination agreement and is thus to be held liable for the consequences thereof. ii. Consequences

22. Having stated the above, the Single Judge turned his attention to the question of the consequences of such unjustified breach of the termination agreement committed by the

Respondent.

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23. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant the following amount: - USD 63,336 payable on 30 June 2022.

24. What is more, based on its well-established jurisprudence as well as taking into account the Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above amounts as from 1 July 2022. iii. Art. 7 of Annexe 2 of the Regulations

25. In continuation, bearing in mind the foregoing considerations, the Single Judge referred to art.7 par.2 of Annexe 2 of the Regulations, which stipulates that any club or association 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.7 par.4 of Annexe 2 of the Regulations. In this respect, the Single Judge confirmed that the Respondent failed to comply with its financial obligations in line with the contract, without a prima facie justification, and was duly notified of the contractual breach by the Claimant, who granted the Respondent at least 10 days to cure its default, to no avail.

26. The Single Judge established that by virtue of art.7 par.4 of Annexe 2 of the Regulations it has competence to impose sanctions on the Respondent.

27. Moreover, the Single Judge referred to art.7 par. 6 of Annexe 2 of the Regulations, which establishes that a repeated offence will be considered as an aggravating circumstance and lead to a more severe penalty.

28. In this context, the Single Judge highlighted that over the past two years, under case ref. nos. FPSD-2369; FPSD-2384, FPSD-2445, FPSD-2432, FPSD-2434, FPSD-2777, FPSD-4576; FPSD-4147, FPSD-4193 and FPSD-7725, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis.

Bearing in mind the aforesaid, the deciding body decided to impose a fine in the amount of USD 37,500 on the Respondent. iv. Compliance with monetary decisions

29. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 8 par. 1 and 2 of Annexe 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.

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30. In this regard, the Single Judge 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.

31. Therefore, bearing in mind the above, the Single Judge 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. 8 par. 2, 4, and 7 of Annexe 2 of the Regulations.

32. 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.

33. The Single 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. 8 par. 8 of Annexe 2 of the Regulations.

d. Costs

34. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.

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

36. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties.

REF FPSD-8437

Decision of the Players Status Chamber

1. The claim of the Claimant, Bart Marie Caubergh, is accepted.

2. The Respondent, Al Ahli, has to pay to the Claimant, the following amount: - USD 63,336 as outstanding amount plus 5% interest p.a. as from 1 July 2022 until the date of effective payment.

3. A fine in the amount of USD 37,500 is imposed on the Respondent, which fine is to be paid

to FIFA within 30 days of notification of this decision (cf. note relating to the payment of the fine below)

4. Full payment (including all applicable interest) of the amount mentioned in point 2 shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to art. 8 of Annexe 2 of the Regulations on the Status and Transfer of Players, if full payment (including all applicable interest) of the amount mentioned in point 2 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. 8 par. 7 and 8 of Annexe 2 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

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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 RELATING TO THE PAYMENT OF THE FINE: If applicable, payments to FIFA should be made by wire transfer in US dollars (USD) to the following bank account: UBS Zurich Account number 230-366677.61N (FIFA Players’ Status) Clearing number 230

IBAN: CH12 0023 0230 3666 7761 N SWIFT: UBSWCHZH80A Please mention the applicable reference number 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).

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