Labour Disputes
Texto da decisão
REF FPSD-7878
Decision of the Dispute
Resolution Chamber
passed on 1 February 2023
regarding an employment-related dispute concerning
the player Lisandro Alzugaray
BY:
Frans de Weger (the Netherlands), Chairperson
Roy Vermeer (the Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Lisandro Alzugaray, Argentina
Represented by Messrs Sven Demeulemeester and
Willem-Alexander Devlies
RESPONDENT:
Al Ahli, Saudi Arabia
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I. Facts of the case
1.
On 1 August 2022, the Argentinian player, Lisandro Alzugaray (hereinafter: the Claimant),
and the Saudi Arabian club, Al Ahli (hereinafter: the Respondent) signed an employment
contract (hereinafter: the Contract).
2.
In accordance with art. 4.1 of the Contract, the parties agreed that the term of the
Contract began on 1 August 2022 and expired on 30 May 2023.
3.
In accordance with art. 5.1 of the Contract, the Respondent undertook to pay to the
Claimant a net monthly salary of USD 60,000.
4.
Moreover, in accordance with art. 5.2 of the Contract, the Respondent undertook to pay
the Claimant a signing fee of USD 200,000, by no later than 15 August 2022.
5.
Furthermore, art. 5.5 of the Contract foresaw as follows:
“The Club shall have the option to extend the expiry date of this contract until 30 June 2024. If
the Club wants to exercise this option, the Club shall notify the Player in writing to the email
address mentioned in this contract before 1 April 2023. If the Club does not notify the player
of its wish to activate the option before 1 April 2023, this option is deemed null and void.”
6.
Additionally, in accordance with art. 5.4 of the Contract, the Respondent undertook to
provide 3 business class flight tickets for the route “home-Jeddah-home”, as well as
“suitable accommodation as per the club policies”.
7.
Beyond this, in accordance with art. 6.16 and 6.18 of the Contract, the Respondent
undertook to cover all costs incurred by the Claimant, relating to medical treatment and
rehabilitation during the term of the Contract and 12 months beyond the expiry thereof,
if said injury was suffered within the contractual terms and the relevant costs were
incurred pursuant to a referral by the Club doctor.
8.
Lastly, in accordance with art. 7 of the Contract, the parties agreed as follows:
“(Player’s obligations)
5. Attend all training sessions, training camps, seminars, press conferences and such other
events as the club may require from time to time;
7. apply his best efforts, with punctuality and without reservation, to the maximum of his
capabilities, in performing the activities and obligations provided for in this Contract, unless
his health prevents him from doing so;
8. apply his best efforts to maintain and, wherever possible, improve the level of his sporting,
physical and psychological capabilities.”
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9.
Following the signature of the Contract, the Claimant immediately traveled to Türkiye for
the training camp organized by the Respondent.
10. On 9 August 2022, i.e. eight days after signing the Contract, the Claimant suffered an
injury while playing in a friendly match for the Respondent against Al Raed FC.
11. On 10 August 2022 the Claimant returned to Jeddah with the entire squad, following the
end of the training camp.
12. As he arrived in Jeddah, he Claimant underwent medical screening at a hospital and was
diagnosed with a sprained ankle which would render him unable to play for at least one
month.
13. On 2 September 2022, the Executive Board of the Respondent had been replaced and a
new president appointed.
14. On 8 September 2022, the Respondent sent the Claimant a termination letter, arguing
therein that the latter had not complied with his contractual obligations by not attending
training sessions, as recorded in an alleged technical report.
15. On the same day, the Claimant challenged the termination of the Contract, outlining that
it undermined the basic principles of contractual stability and that he Respondent would
be granted a deadline of 24 hours to remedy the situation and withdraw the termination,
before the Claimant would seek judicial relief. The Claimant also denied having received
any such technical report, and further informed the Respondent that the signing bonus
of USD 200,000 had still remained unpaid.
16. On 10 August 2022, the Claimant informed the Respondent that, lacking any reaction by
the latter to his previous letter, he equally considered the Contract terminated and would
pursue judicial relief.
17. On 22 December 2022, the Claimant and the Ecuadorian club, LDU Quito (hereinafter: the
New Club) signed an employment contract (hereinafter: the New Contract) valid as from
1 January 2023 until 31 December 2023.
18. In accordance with the New Contract, the Claimant is entitled to a monthly remuneration
of USD 10,000.
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II. Proceedings before FIFA
19. On 17 October 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
20. According to the Claimant, no prior warning or any indication that he was in breach of the
Contract was ever communicated by the Respondent before the termination of the
Contract on 8 September 2022.
21. In this respect, the Claimant alleged that, due to his injury suffered on 9 August 2022 while
playing for the Respondent in a friendly match, and his subsequent inability to play for an
extended period of time, the Respondent was attempting to “get rid of him” because, in
accordance with the regulations of the Saudi Arabian Football Federation (SAFF), Saudi
Arabian clubs are only allowed to register a certain number of foreign players and that
said threshold had already been met by the Respondent. The Claimant also indicated that
the Contract was terminated on 8 September 2022, which happened to be the same day
as the closure of the registration window in Saud Arabia, pursuant to a Circular letter
issued by SAFF informing clubs under its auspices to this effect.
22. The Claimant also wished to highlight that he acted in good faith and attempted to
remedy the situation by granting the Respondent a deadline to withdraw the termination,
to no avail.
23. In conclusion, the Claimant requested outstanding remuneration in the net amount of
USD 260,000, corresponding to the signing bonus of USD 200,000 which fell due on
15 August 2022, as well as the salary for August 2022 of USD 60,000, which fell due on
31 August 2022.
24. Moreover, the Claimant requested compensation as follows:
-
USD 540,000 net corresponding to the residual value of the season 2022/2023 as
from the date of termination;
USD 1,100,000 net corresponding to the value of the season 2023/2024, pursuant
to the unilateral extension contained in the Contract;
USD 360,000 net additional compensation due to the existence of egregious
circumstances;
USD 2,826.46 net + EUR 3,266.40 net as reimbursement for various travel expenses;
USD 99.14 net as reimbursement for medical expenses.
25. With regards to interest, the Claimant requested 5% p.a. on both the outstanding
remuneration and compensation, as from the respective due dates of the unpaid
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instalments for the outstanding remuneration, and from the date of termination for the
compensation.
26. The Claimant also requested the imposition of sanctions in accordance with art. 12bis,
art. 17 par. 4 and art. 24 of the Regulations.
b. Position of the Respondent
27. In its reply, the Respondent explained that the Claimant ceased to attend training
sessions without explanation or authorisation, undermining the Contract and putting the
possibility of continuing the parties’ contractual relations in jeopardy.
28. The Respondent particularly relied on art. 7 of the Contract in arguing that the Claimant
failed to comply with his contractual duties by not attending training sessions, despite
having been specifically instructed to do so by the Respondent in an “individualised
recovery programme”.
29. The Respondent also alleged that it had attempted to reach the Claimant but that his
mobile phone was deliberately switched off, as well as contacting the physiotherapist to
whom the Claimant was assigned, who could also not find him and treat him at all.
30. The Respondent argued that due to the severity of the breaches committed by the
Claimant, no further amounts shall be payable under the Contract.
31. The Respondent thus rejected the claim in its entirety.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the (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 17 October 2022 and submitted for decision on
1 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.
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 October 2022 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 an
Argentinian player and a Saudi Arabian club.
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 (October 2022
edition), and considering that the present claim was lodged on 17 October 2022, the
July 2022 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.
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i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the lawfulness of the
retention of certain amounts by the Respondent due to alleged disciplinary
contraventions, as well as the contractual termination dated 8 September 2022.
7.
In this context, the Chamber acknowledged that it its task was to determine, based on the
parties’ submissions and the evidence on file, whether or not the Respondent, who
acknowledged not having remitted the amounts in dispute, had a valid justification for
such non-payment, and, additionally, whether or not the Contract was terminated withor without just cause.
8.
In this respect, the Chamber referred to art. 13 par. 5 of the Procedural Rules, according
to which a party that asserts a fact bears the burden of proving its veracity, and went on
to analyse the documentation provided by the parties in support of their allegations.
9.
In respect of justifying the non-payment of the signature bonus of USD 200,000 net and
the salary of August 2022, in the amount of USD 60,000 net, the Chamber deemed that
the Respondent failed to meet the burden of proving that it justifiably defaulted on the
disputed amounts, as no evidence of any internal disciplinary hearing or otherwise had
been submitted to the file, to corroborate the allegations of misbehaviour that could
potentially affect the Claimant’s entitlement to the contractually agreed amounts.
10. Thus, in any event, the Chamber established that the Respondent is liable to pay the
Claimant an outstanding remuneration of USD 260,000 net.
11. Beyond this, the Chamber turned to the request of the Claimant for reimbursement of
travel expenses. In this respect, the Chamber deemed that, although the Claimant
provided ample evidence as to all requested amounts, as the Contract clearly stipulated
that the Respondent shall only pay for flight tickets between the Claimant’s home and
Jeddah, the amounts claimed with regards to Airbnb and hotel expenses shall not be
awarded, as they have no contractual basis (cf. art. 5.4 of the Contract). Therefore, it was
concluded that only the following travel expenses should be awarded to the Claimant:
-
USD 1,240 (Flight from Jeddah to Madrid [layover to Buenos Aires]);
-
EUR 3,266.40 (Flight from Madrid to Buenos Aires).
12. As to the medical costs, although there is a contractual basis for reimbursement of
medical and recovery-related expenses, the Chamber observed that these were
conditional on the “referral by the team doctor”; given that the Claimant provided no
evidence as to such referral having been made by the respective person, the Chamber
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deemed that the burden of proving entitlement thereto has not been met (cf. art. 13
par. 5 Procedural Rules), and thus rejected this part of the claim.
13. Turning to the contractual termination, the Chamber recalled the Claimant’s line of
argument that he was injured during a match on 9 August 2022 and that the Respondent
falsely alleged that the Claimant engaged in misbehaviour, so as to dismiss him and hire
a new player before the closure of the registration period in Saudi Arabia. The Chamber
took note of the evidence submitted in this regard, namely a copy of the match sheet,
pictures from said match, both corroborating his participation therein, as well as
photographic evidence of the Claimant in hospital, and the communication of the
Claimant’s MRI to the Respondent, thereby informing the latter of the injury.
14. On the other hand, the Chamber observed that the Respondent argued that the Claimant
had been missing from training, as well as alleging various other disciplinary offences,
which were, however, not supported by any evidence whatsoever. The Respondent also
purported, without any corroborating evidence, that it attempted in vain to contact the
Claimant and his physiotherapist on several occasions.
15. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a
contract without prior warning. In other words, only when there are objective criteria
which do not reasonably permit to expect the continuation of the employment
relationship between the parties, a contract may be terminated prematurely. Hence, if
there are more lenient measures which can be taken in order for an employer to assure
the employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment
contract can only be an ultima ratio measure.
16. With the above in mind, given that the Respondent provided no evidence of any
disciplinary offences, as alleged against the Claimant, and the latter had corroborated his
absence with an injury sustained during is rendering of services for the Respondent, the
Chamber deemed that the Respondent failed to put forward any credible case of the
Claimant having been in breach of the Contract, to the extent of triggering the
consequences of an unlawful termination. The Chamber also emphasised that, contrary
to the Respondent’s argumentation, the Claimant submitted sufficient evidence to
demonstrate that the former was fully aware of his circumstances, impeding him to
return to training, and that the Respondent was, as also conceded in its reply to the
present claim, aware of the Claimant’s injury and participation in a “recovery programme”.
17. Therefore, the Chamber concluded that the termination of the Contract by the
Respondent on 8 September 2022 could not be classified as an ultima ratio measure, and
thus took place without just cause.
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18. Lastly, the Chamber took note of the Claimant’s argumentation that the Contract was
subject to a unilateral extension clause, i.e. art. 5.5 thereunder, which would potentially
affect the compensation payable to him in the present proceedings.
19. In this respect, the Chamber pointed out that the extension of the contractual term was
conditional on the Respondent’s written notification of its intention to renew the Contract,
therefore not being an amount which was guaranteed. The Chamber also confirmed that
no such notification had been sent by the Respondent at any point prior to the unilateral
termination of the Contract by the latter.
20. Therefore, the Chamber established that the term of the Contract was, in accordance with
art. 4.1 thereunder, limited to 30 May 2023.
ii. Consequences
21. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
22. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, are equivalent to
USD 260,000, plus USD 1,240 and EUR 3,266.40 net.
23. 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
net amounts which were outstanding under the contract at the moment of the
termination, i.e. USD 260,000, plus USD 1,240 and EUR 3,266.40.
24. 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 the following dates:
-
on the net amount of USD 200,000, 5% p.a. as from 16 August 2022 until the
date of effective payment;
-
on the net amount of USD 60,000, 5% p.a. as from 1 September 2022 until the
date of effective payment;
-
on the net amount of USD 1,240, 5% p.a. as from 11 September 2022 until the
date of effective payment;
-
on the net amount of EUR 3,266.40, 5% p.a. as from 13 September 2022 until the
date of effective payment
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25. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing
so, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due consideration
for the law of the country concerned, the specificity of sport and further objective criteria,
including in particular, the remuneration and other benefits due to the player under the
existing contract and/or the new contract, the time remaining on the existing contract up
to a maximum of five years, and depending on whether the contractual breach falls within
the protected period.
26. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of
which the parties had beforehand agreed upon an amount of compensation payable by
the contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
27. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of compensation
payable.
28. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the terms of
the contract from the date of its unilateral termination until its end date. Consequently,
the Chamber concluded that the amount of USD 540,000 (i.e. the residual value of the
Contract as from the date of termination, or nine times USD 60,000) serves as the basis
for the determination of the amount of compensation for breach of contract.
29. In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the
constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection with the
Claimant’s general obligation to mitigate his damages.
30. Indeed, the Claimant found employment with the New Club. In accordance with the New
Contract, the Claimant was entitled to USD 10,000 per month. Therefore, the Chamber
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concluded that the Claimant mitigated his damages in the total amount of USD 50,000,
that is, 5 times USD 10,000.
31. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that, as the
Contract was not terminated due to said reason, no additional compensation shall apply.
32. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay the
amount of USD 490,000 net to the Claimant (i.e. USD 540,000 minus USD 50,000), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
33. Lastly, 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 on said
compensation at the rate of 5% p.a. as of 17 October 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
34. 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.
35. 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.
36. 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.
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37. 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.
38. 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
39. 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.
40. 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.
41. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Lisandro Alzugaray, is partially accepted.
2.
The Respondent, Al Ahli, has to pay to the Claimant, the following net amounts:
- USD 261,240 as outstanding remuneration plus interest as follows:
-
5% interest p.a. over the amount of USD 200,000 as from 16 August 2022 until the date
of effective payment;
-
5% interest p.a. over the amount of USD 60,000 as from 1 September 2022 until the date
of effective payment;
-
5% interest p.a. over the amount of USD 1,240 as from 11 September 2022 until the date
of effective payment;
- EUR 3,266.40 as outstanding remuneration plus 5% interest p.a. as from
13 September 2022 until the date of effective payment;
- USD 490,000 as compensation for breach of contract without just cause plus 5%
p.a. as from 17 October 2022 until the date of effective payment.
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.
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6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 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
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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 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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