Dispute Resolution Chamber
Texto da decisão
REF 20-01761
Decision of the
DRC Judge
passed on 21 April 2021,
regarding an employment-related dispute concerning the player Firas Mohamed AlKhatib
BY:
Pav el Piv ov arov (Russia), DRC Judge
CLAIMANT:
Firas Mohamed Al-Khatib, Syria
Represented by Mr Nader Jalal Mohamed Al-Awadhi
RESPONDENT:
Al Salmiya Sporting Club, Kuwait
Represented by Mr Habib Grami
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REF 20-01761
I. FACTS OF THE CASE
1.
On 28 May 2018, the Syrian player, Firas Mohamed Al-Khatib, (hereinafter: the Claimant or
player), and the Kuwaiti club, Al Salmiya Sporting Club, (hereinafter: the Respondent or club)
concluded an employment contract valid as from 1 August 2018 until 30 June 2020 (hereinafter:
the contract).
2. On 19 September 2019, the parties signed a “Dissolution Agreement” (hereinafter: the
termination agreement), stipulating that the Claimant is entitled to a compensation of Kuwaiti
Dinars (KD) 157,000, payable in five instalments.
3. According to the termination agreement, the Respondent undertook to pay to the Claimant the
amount of KD 157,000, as follows:
- “First Instalment: KD 40,000 on 26/09/2019;
- Second Instalment: KD 30,000 on 01/01/2020;
- Third Instalment: KD 30,000 on 01/04/2020;
- Fourth Instalment: KD 30,000 on 01/06/2020;
- Fifth Instalment: KD 30,000 on 01/08/2020.”
4. Art. 4 of the termination agreement provided that “Any dispute arising between the Parties hereto
in connection with the execution or construction of this Agreement shall be subject to the National
Sports Arbitration Tribunal (NAST), and International federation of Association Football (FIFA).”
5. On 3 July 2020, the DRC Judge rendered a decision by means of which the club was condemned
to pay to the player the amount of KD 130,000, corresponding to the 1st, 2nd, 3rd and 4th instalments
of the termination agreement, plus 5% interest p.a. as from the due dates.
6. On an unknown date, the player sent a default notice to the club “informing them that his
compensation relating to the last instalment which was due in 1 August 2020 had remain unpaid,
and provided the Respondent with 10 days to make the due payments”, however to no avail.
7. On 1 December 2020, the Claimant lodged a claim against the Respondent in front of FIFA for
outstanding remuneration, claiming the following:
i.
“The Respondent has to pay the Claimant outstanding compensation of KD 27,000.00
(twenty-seven thousand Kuwaiti Dinars which is equivalent to US $88,290.32 (Eighty-eight
thousand and two hundred ninety and thirty two cent US Dollar ) as the last instalment
according to Art 3 of the dissolution of agreement, plus amount of KD 1,350.00 ( one
thousand & three hundred fifty Kuwaiti Dinars) which is equivalent to US $4,415.32 (four
thousand & four hundred fifteen and thirty two cent US Dollar) as interest of 5%;
ii.
A ban on registering new players, either nationally or internationally, for two registration
periods, following the notification of the FIFA decision, shall be imposed on the
Respondent.
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8. In its reply to the claim, the club first confirmed to have not paid the amount agreed by the parties
in the termination agreement.
9. Subsequently, the club maintained that art. 4 of the termination agreement provided that the
jurisdictional bodies of Kuwait, in particular the National Sports Arbitration Tribunal (NAST), should
be competent to decide over the present matter and that said art. excluded the competence of
the FIFA DRC to decide in the first instance on a possible dispute. Therefore, according to the club,
the DRC shall not be competent to decide on present matter.
10. The club added that according to the Arabic text of art. 4 of the termination agreement, it would
be possible to have recourse to FIFA only if the decision passed by NAST is to be appealed. In light
of such interpretation, the club requested FIFA to reject the player’s claim.
11. Finally, in its request for relief, the club requested the following:
-
The DRC to declare it is not competent to decide on the present dispute;
In the alternative, to reject the Claimant’s claim.
II. CONSIDERATIONS OF THE DRC JUDGE
1.
First of all, the DRC judge analysed whether he was competent to deal with the matter at stake.
In this respect, the DRC judge took note that the present matter was submitted to FIFA on 1
December 2020 and decided on 21 April 2021. Thus, the 2021 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.
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players, the DRC judge is, in principle, competent to deal with the
matter at stake, which concerns an employment–related dispute with an international dimension.
3.
At this point, the DRC judge noted that the Respondent objected the admissibility of the present
claim, alleging that according to art. 4 of the termination agreement the Kuwaiti National Sports
Arbitration Tribunal (NAST) is competent to adjudicate in the present matter.
4.
In this regard, the DRC judge, having analysed the contents of art. 4 of the termination agreement
(cf. par. I.4. above), held that he could not follow the Respondent’s challenge on competence. In
the DRC judge’s view, art. 4 does not constitute a clear and exclusive jurisdiction clause in favour
of a specific deciding body other than FIFA, in fact, said art. 4 even referred to FIFA. In particular,
the reference to a deciding body called “NAST” remains vague; although the Respondent alleged
that this deciding body is the Sports Arbitral Tribunal of Kuwait, the latter party did not adduce
any documentary evidence in this regard.
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5.
In light of the vagueness of the jurisdiction clause contained in the contract, the DRC judge thus
concluded, with reference to art. 22 lit. b) of the Regulations on the Status and Transfer of Players,
that he is competent to hear the present matter. The claim is, therefore, admissible.
6.
Subsequently, the DRC judge 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 DRC judge
confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and
considering that the present claim was lodged in front of FIFA on 1 December 2020, the October
2020 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.
7.
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, the DRC judge 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
he will refer only to the facts, arguments and documentary evidence, which he considered
pertinent for the assessment of the matter at hand.
8.
In this respect, the DRC judge acknowledged that, on 28 May 2018, the Claimant and the
Respondent concluded an employment contract valid as from 1 August 2018 until 30 June 2020.
9.
Moreover, the DRC judge the DRC judge acknowledged that, on 19 September 2019, the
Claimant and the Respondent signed the termination agreement, according to which the Claimant
was entitled to receive the amount of KD 157,000 in five instalments.
10. Furthermore, the DRC judge took note that, on 3 July 2020, having the Respondent not fulfilled
its financial obligation towards the Claimant, the DRC judge rendered a decision by means of
which the club had to pay to the player the amount of KD 130,000, corresponding to the 1st, 2nd,
3rd and 4th instalments of the termination agreement.
11. Having recalled the above, the DRC judge observed that, the Claimant, in his claim lodged on 1
December 2020, claimed outstanding remuneration in the amount of KD 27,000, corresponding,
according to the player, to the 5th and last instalment agreed by the parties when the termination
agreement was concluded plus KD 1,350 as interest.
12. In continuation, the DRC judge took note that the Respondent did not deny the player’s
allegations concerning the fact that the last instalment of the termination agreement remained
unpaid by the club.
13. In light of the above, the DRC judge highlighted that the Respondent must fulfill its obligations as
per the termination agreement in accordance with the general legal principle of “pacta sunt
servanda”. Consequently, the DRC judge decided that the Respondent is liable to pay to the
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REF 20-01761
Claimant the remuneration claimed by the player that was outstanding at the time of the claim
was lodged, i.e. the amount of KD 27,000, as per the termination agreement.
14. In addition, taking into consideration the claim lodged by the Claimant, as well as the constant
practice of the DRC, the DRC judge decided to award the latter 5% interest p.a. on the above
mentioned amount of KD 27,000 as from 2 August 2020 until the date of effective payment.
15. Furthermore, taking into account the consideration under number II./6. 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 amount of outstanding remuneration and/or
compensation in due time.
16. 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.
17. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the
Respondent does not pay the amount 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.
18. The DRC judge recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the
Regulations.
19. Lastly, the DRC judge referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club and
a player are free of charge”. Accordingly, the DRC judge decided that no procedural costs were
to be imposed on the parties.
20. Likewise and for the sake of completeness, the DRC judge recalled the contents of art. 18 par. 4
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
21. The DRC judge concluded his deliberations in the present matter by establishing that the
Claimant’s claim is partially accepted and any further claims of the Claimant are rejected.
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III. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Firas Mohamed Al-Khatib, is admissible.
2.
The claim of the Claimant is partially accepted
3.
The Respondent, Al Salmiya Sporting Club, has to pay to the Claimant, the following amount:
- KD 27,000 as outstanding remuneration plus 5% interest p.a. as from 2 August 2020 until
the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established 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 following consequences shall arise:
1. 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. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
8.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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) 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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