Labour Disputes
Texto da decisão
REF. FPSD-9908
Decision of the
Dispute Resolution Chamber
passed on 20 July 2023
regarding an employment-related dispute concerning
the player Mehdi Abeid
BY:
Clifford HENDEL (USA & France), Deputy Chairperson
Mario FLORES CHEMOR (Mexico), member
Alexandra BRUINEWOUD GOMEZ (Uruguay), member
CLAIMANT:
Player Mehdi Abeid, France & Algeria
Represented by Ms Pinar Yuzer
RESPONDENT:
Al Nasr, United Arab Emirates
Represented by Breno Costa Ramos Tannuri
pg. 2
REF. FPSD-9908
I. Facts of the case
1. On 30 January 2021, the Club and the Player concluded an employment contract, valid until
29 June 2022 which was mutually extended until 29 June 2023.
2. On 1 September 2022, the parties concluded a termination agreement.
3. Accordingly, the club committed to pay the following net amounts to the player:
- EUR 183,333 within 10 days from the signature of the agreement;
- EUR 700,000 payable in 7 equal instalments of EUR 100,000 each, from 10 October 2022
until 10 April 2023.
4. The contract further stipulated the following:
“3.5. If the club is found to be overdue for any payment referred to in this Article for a period of
more than ten days, a fine of 15% shall be applied to the outstanding payment”.
5. The termination agreement also stipulated the following:
“Article (5)
If, during the current sports season 2022-2023, the player signed an employment contract with
any Emirati club, it must be calculated the total of the player´s salaries with his new club for the
2022-2023 season plus the compensation for early terminating the player´s contract with Al Nasr.
If the total of those salaries and compensation exceeds more than the player´s salaries that were
due to him under his terminated employment contract during the remaining period of the
aforementioned contract (i.e., from 01/09/2022 to 29/06/2023), in this case, the first party (Al Nasr)
shall be entitled to deduct that excess amount from the player´s compensation agreed upon in
Article (3). In the event the player has already received such compensation, he shall be obliged to
return that excess amount to Al Nasr Club.”
6. On 13 March 2023, the player sent a default notice requesting the payment of EUR 302,062
within 10 days, detailed as follows:
EUR 62,663 due on 10 January 2023 (the player acknowledged the receipt of EUR 37,337);
EUR 100,000 due on 10 February 2023;
EUR 100,000 due on 10 March 2023.
EUR 39,339 as contractual fine.
7. On 20 September 2022, the player concluded an employment contract with the Emirati
club, Khorkaffan.
8. According to said contract, the player was entitled to a total remuneration of USD 720,000,
payable as follows:
- 3. 1 USD 400,000 net, in 10 monthly instalments of USD 40,000 each, from 20 September
2022 until 30 June 2023;
- 3. 2 USD 50,000 as housing allowance of the entire period, to be paid on 1 October 2022;
- 3. 3. USD 30,000 as furniture allowance, due on 1 October 2022;
pg. 3
REF. FPSD-9908
- 3. 4. USD 120,000 as financial reward if the player participates in the first five official
matches;
- 3. 5. USD 20,000 “as a reward for proficiency for his participation in the first five official
matches.”;
- 3. 6 USD 100,000 “if he participated in Extra five officials match to be paid in February 2023”
II. Proceedings before FIFA
1. On 13 April 2023, the player lodged a claim before the FIFA Football Tribunal for
outstanding remuneration and requested the payment of the EUR 302,062 as detailed
in his default notice, plus 5% interest p.a. as from said notice.
2. In its reply, the club argued that the player received much more than what was
stipulated in the termination agreement.
3. In particular, the club referred to the mitigation stipulated in art. 5 of the termination
agreement, and requested to consider all the amount he would earn from his new club,
including the bonuses.
4. According to the club, it paid EUR 520,670, but he was only entitled to received EUR
497,003. Consequently, the club requested the reimbursement of the amount of EUR
23,667, plus 5% interest p.a. a s from 2 January 2023.
5. The Respondent provided the following calculation:
Description
Amount
A
Compensation amount pursuant to Termination Agreement
USD 883,333
B
Total remuneration according to Khorfakkan Contract
USD 670,000
B.1 - Salary
USD 400,000
B.2 - Appearance bonuses
USD 240,000
B.3 - Supposed furniture allowance
USD 30,000
C
D
Conversion of remuneration from USD to EUR
Total remuneration for 2022-2023 season based on the
Employment Contract
E
Deduction from total Compensation amount (i.e. A + B – C)
F
Total amount payable by the Club under Settlement
Agreement (i.e. A – E)
USD 670,000 =
EUR 670,000
EUR 1,166,670
EUR 386,330
EUR 497,003
pg. 4
REF. FPSD-9908
6. The Respondent noted that the Khorfakkan Contract, on the one hand, determined a
quite low fixed remuneration (or salaries) to the Player during the 2022-2023 season
and, on the other hand, within the very same period, extremely high amounts due as
attendance bonuses, with easy conditions to be fulfilled. For instance, the club argued
that the Player also inflated certain allowances, such as the housing and furniture
allowances.
7. In his replica, the Claimant requested the total amount of EUR 1,392,521 “according to
the new wording of the termination contract” or, alternatively, his initially claimed
amount of EUR 302,062.
8. In the opinion of the player, if the club wants to consider the bonuses with his new
club, then the bonuses with the respondent should also be considered.
9. The player provided the following figures:
Potential earnings from Al Nasr
Amount
EUR 1,166,670 (i.e. EUR 10*
Monthly salary
116,667)
Monthly housing allowance
EUR 4,000
Bonus for every 5 goals scored
EUR 30,000
Bonus for every 3 goals scored
EUR 30,000
Bonus for league best player title
EUR 50,000
Bonus for first place in UAE ProLeague
EUR 125,000
Bonus for winning UAE President Cup title
EUR 70,000
Bonus for winning Arabian Gulf Cup title
EUR 40,000
Bonus for winning AFC Champions League title
EUR 300,000
Bonus for second place in AFC Champions League EUR 150,000
Bonus Total
EUR 795,000
Contract Potential Total for ten months period
EUR 2,001,670
Potential earnings from the new club (Khorkaffan)
Monthly salary
USD 400,000 (i.e. 50,000*8)
Housing allowance
USD 50,000 (i.e. 5,555*9)
Furniture allowance
USD 30,000
Bonus for participation in first official matches
USD 120,000
pg. 5
REF. FPSD-9908
Proficiency reward for first five official matches
USD 20,000
Bonus for extra official matches
USD 100,000
Total potential:
USD 860,000 [sic]
10. The player argued that the Club must adjust the difference in values. In this case, the
player argues that the club owes him EUR 1,210,888. Moreover, the player stated that
a fine of 15% as per Article 3.5 shall be applied to the outstanding payment, resulting
in a total payment of EUR 1,392,521 due to him.
11. The Claimant argued that the Respondent is basing its calculation “to other financial
amounts regardless of whether player achieved the bonuses mentioned”. Consequently,
the player considered that the club “shall also consider the terminated contract in its full
potential value”.
12. The Claimant explained that he did not received the bonuses stipulated in the
Khorfakkan contract, as he did not participate in the first 5 official matches.
13. In its duplica, the Respondent confirmed its request for a refund of EUR 23,667 plus
5% interest p.a. as from 2 January 2023, noting the following figures:
Total amount payable by the Club to the Player
under the Settlement Agreement
EUR 497,003
Amounts paid by the player’s new club to the Player
between 11 October 11 and January 1, 2023.
EUR 520,670
Difference.
EUR 23,667
14. The club insisted that that the Settlement Agreement was reached in good faith and
included a fair compensation for early termination. The club argued that any attempt
to include elements not negotiated or agreed upon in the Settlement Agreement is
legally unfounded.
15. The club further considered that the bonuses in the employment contract were
designed by the player to cheat the mitigation factor in the Settlement Agreement. For
instance, the club argued that the player's participation in five official matches was an
obvious condition that he was expected to fulfil.
16. In this respect, the club provided a document issued by Khorkaffan indicating that “due
to the positive relationship between our clubs, we want to confirm that the player (…), has
met the participation requirements outlined in clauses (4-5-6) of Article No. 3 of his
employment contract. This means that he is entitled to receive an award once he has
participated in five official matches with the first team, regardless of whether the matches
were consecutive or not.”
pg. 6
REF. FPSD-9908
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) 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 20 July 2023 and submitted for
decision on 20 July 2023. Taking into account the wording of art. 34 of the April 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.
2.
Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (May 2023 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from
France and Algeria and a club from United Arab Emirates.
3.
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 (March 2023 edition), and
considering that the present claim was lodged on 13 April 2023, the March 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
4.
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. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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
5.
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.
pg. 7
REF. FPSD-9908
i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter.
7.
In this context, the Chamber acknowledged that, fundamentally, the matter at stake is to
determine the total amount due to or by the player arising from a termination agreement.
8.
In particular, the Chamber noted that the parties concluded a termination agreement
according to which the club committed to pay the following net amounts to the player:
-
9.
EUR 183,333 within 10 days from the signature of the agreement;
EUR 700,000 payable in 7 equal instalments of EUR 100,000 each, from 10
October 2022 until 10 April 2023.
The Chamber then noted that the termination agreement included a clause (cf. point I. 5
above) stipulating, in particular, that if during, the sports season 2022-2023, the player
signed a contract with any Emirati club and terminated his contract with Al Nasr, the total
of the player's new club salary and compensation for early termination must be compared
to the remaining amount of the player's salary under the old contract.
10. Therefore, with due examination to the applicable clause, as well as to the arguments and
evidence gathered during the submission-phase, the Chamber proceeded to the calculated
of the monies due to the player.
11. The Chamber considered the combined value of (x) the player's salaries (only proper
salaries, and not bonuses, shall be taken into account) with the new club and (y) the
compensation for early termination of the contract with Al Nasr (i.e. the value of the
termination agreement). The combined value was determined to be (A) EUR 1,283,333,
calculated as x + y = EUR 400,000 + EUR 883,333.
12. The Chamber then examined the player's salaries that were owed to him under his
terminated employment contract during the remaining period of the contract (from
01/09/2022 to 29/06/2023), which amounted to (B) EUR 1,166,670 (cf. point I. 9 above).
13. Subsequently, the Chamber then calculated the amount to be deducted as per the
settlement agreement, resulting in (C) EUR 116,663 (i.e. A - B), where, as indicated, A = EUR
1,283,333 and B = EUR 1,166,670.
14. As a result, the Chamber determined that, in principle, the amount due to the player as per
the settlement agreement was calculated to be EUR 766,670 (D), obtained by subtracting
(C) EUR 116,663 from (y) EUR 883,333
pg. 8
REF. FPSD-9908
15. Taking into account the payments already performed by the club, which amounted to (E)
USD 520,670, the Chamber determined the final outstanding amount to be (F) EUR 246,000
(D - E), where D = EUR 766,670 and E = USD 520,670.
16. Based on the foregoing analysis and in accordance with the applicable clause, the Chamber
found that the final outstanding amount payable to the player was EUR 246,000.
17. Therefore, in application of the principle of pacta sunt servanda, the Chamber decided that
the Respondent shall pay to the Claimant, the outstanding amount of EUR 246,000.
18. In addition, taking into account the claim of the Claimant, the Chamber decided to grant
5% interest p.a. over said amount as from the due dates (i.e. attributed to the last
instalments of the termination agreement).
19. Furthermore, and in accordance with art. 3.5 of the termination agreement, as well as
taking into account the petition of the Claimant, the Chamber decided to award a
contractual penalty of 15% over the outstanding amount, i.e. EUR 36,900 (EUR
246,000*15%).
ii. Compliance with monetary decisions
20. 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.
21. 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.
22. 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.
23. 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.
pg. 9
REF. FPSD-9908
24. 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
25. 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.
26. 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.
27. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-9908
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mehdi Abeid, is partially accepted.
2.
The Respondent, Al Nasr, must pay to the Claimant the following amounts:
- EUR 246,000 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount EUR 46,000 of as from 11 March 2023 until the date of effective payment;
- 5% interest p.a. over the amount EUR 100,000 of as from 11 May 2023 until the date of effective payment;
- 5% interest p.a. over the amount EUR 100,000 of as from 11 April 2023 until the date of effective payment;
- EUR 36,900 as outstanding 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. 11
REF. FPSD-9908
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12