Labour Disputes
Texto da decisão
REF FPSD-14298
Decision of the
Dispute Resolution Chamber
passed on 11 July 2024
regarding an employment-related dispute concerning the player
Nabil Bahoui
BY:
Lívia SILVA KÄGI (Brazil), Deputy Chairperson
Mario FLORES CHEMOR (Mexico), member
Michele COLUCCI (Italy), member
CLAIMANT:
Nabil Bahoui, Sweden
Represented by Elite Law SA
RESPONDENT:
Persepolis Football Club, IR Iran
Page 2
REF FPSD-14298
I. Facts of the case
1.
On 12 September 2023, the Swedish player Nabil Bahoui (hereinafter: the Claimant or the
Player) and the Iranian club Persepolis Football Club (hereinafter: the Respondent or the
Club) concluded an employment contract (hereinafter: the Employment Contract), valid from
the date of signature until 14 June 2024.
2.
Subsequently, on 26 February 2024, the parties entered into a Settlement Agreement
(hereinafter: the Settlement Agreement) whereby they put an end to the Employment
Contract and the Club undertook to pay the Player the amount of QAR 800,910 net
(hereinafter: the Settled Sum), payable in the following instalments:
−
−
QAR 145,620 net no later than 7 March 2024;
QAR 655,290 net no later than 24 April 2024.
The Settlement Agreement explicitly noted that the first amount is “consideration for the
early termination” and the second amount is recognized as outstanding remuneration
owed to the Player.
3.
The Settlement Agreement further stated in Clause 4 that the Settled Sum shall be net and
provided the following:
“5. The Parties agree that upon signature of this Agreement, the Contract shall be immediately
terminated, thus the CLUB can deregister the PLAYER and the latter can leave the CLUB’s
premises and Iran immediately and sign a new contract with any third club (for which the CLUB
shall provide him any due document in case of request as agreed in clause 6.6 of the Contract.
[…] Then, upon full and timely payment of the Settled Sum by the CLUB to the PLAYER as per the
terms set in clause 2, a) and b) above, this Agreement shall be a full, final, and satisfactory
settlement of any and all obligations between the Parties in relation to the Contract. Therefore,
in such case, the Parties agree to waive any right to each other in relation to the Contract.
Therefore, in such case, the Parties agree to waive any right to each other in relation to the
Contract and the employment relationship that occurred as well as the right to initiate any
litigation or application for any judicial process before any administrative, sportive and/or
judicial courts or arbitration or sporting institution domestic or abroad in relation to the
Contract.
6. Conversely, in case the CLUB does not fully and timely pay any installment of the Settled Sum
to the PLAYER as per terms of clause 2 a) and b) above, and still fails to pay within a grace period
of 5 (five) further days from the original deadline, the CLUB shall be automatically liable to pay
the PLAYER (i) the full Settled Sum immediately (less any advance payment received by the
PLAYER), plus interests at 5% p.a. that shall accrue on the unpaid Settled Sum until the full and
effective payment of the entire due amounts (Settled Sum and penalty).
7 This Agreement has a novative effect and replaces in full the Contract.”
Page 3
REF FPSD-14298
4.
On 11 March 2024, the Player sent a default notice to the Club (hereinafter: the First Notice),
whereby it informed the Club that he had not yet received payment of the first instalment
under the Settlement Agreement and reminded the Respondent of the contractually
provided grace period of 5 days to comply, subject to the entire Settled Sum immediately
falling due, plus interests.
5.
On 18 March 2024, after not receiving any payment, the Player sent the Club another
default notice (hereinafter: the Second Notice), whereby it requested payment on the QAR
800,910, plus interest of 5% p.a., within 10 days or it would lodge a claim before FIFA.
II. Proceedings before FIFA
6.
On 4 April 2024, 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
7.
In his claim, the Player recalls the context in which the Settlement Agreement was signed:
the Club already owed the Player a substantial amount of money (QAR 655,290) in
outstanding remuneration, and he agreed to withdraw his rights to claim such amount as
well as future remuneration against the assurance from the Club that the Settlement
Agreement would be respected in full.
8.
According to the Claimant, the Club’s behavior is a serious violation of the Settlement
Agreement, the principle of pacta sunt servanda, and good faith. Moreover, the
Respondent’s serious breach – i.e., not paying the first instalment when it committed to
paying it just a few days after signing the Settlement Agreement – duly triggered the
acceleration mechanism foreseen in Clause 6 of the Settlement Agreement, a mechanism
which was mutually and voluntarily established by the parties in the Settlement Agreement
as an essential condition for signature, in light of the Club’s repeated failures to fulfil its
payment obligations under the Employment Contract and to prevent a situation such as
the one the Player now faced.
9.
The requests for relief of the Claimant were the following:
“I. The claim filed by Mr Nabil Bahoui before the FIFA DRC against Persepolis Cultural & Sports
CO is upheld;
II. Persepolis Cultural & Sports CO is condemned to pay Mr. Nabil Bahoui the sum of QAR
800,910 (eight hundred thousand nine hundred and ten Qatari Riyals) net plus 5% interest p.a.
from 13 March 2024 until the date of full and effective payment;
Page 4
REF FPSD-14298
III. Persepolis Cultural & Sports CO shall bear any and all the possible costs of this procedure.”
b. Position of the Respondent
10.
In its reply, the Respondent first pointed out that it had the right to terminate the
Employment Contract by virtue of its Clause 3, which provided that “in the case, six months
after the start of the contract, the head coach is not satisfied with the performance of the
player then the club can unilaterally terminate the contract.” As such, the Club maintains
that it terminated the Employment Contract mid-season and the Player was entitled to
receive half the amount of the Employment Contract (AED 716,500, considering a total
contract value of AED 1,433,000).
11.
Furthermore, the Club highlighted that the Player had already received USD 80,000 from
the Club.
12.
In addition, the Club argued that the First and Second Notices were not sent by the
Player’s legal counsel, as the Player contended, because “there were no Letters of Attorney
signed by the player attached to the Emails and therefore the said Emails could not be
considered legal notices.” As a club with more than forty million fans in the country, the
Respondent noted that it receives a great deal of spam, phishing, etc. and only considers
official letters.
13.
The Club also argued that the amounts agreed in the Employment Contract were gross
amounts, and, after signing the Settlement Agreement, the Player was supposed to
provide the Club with the tax settlement issued by the Iran Tax Organization. The Player
had not done so and therefore had not fulfilled his obligation towards the Club.
14.
Finally, the Club highlighted that the Settlement Agreement was signed at almost
midnight on 26 February 2024, and had it not been signed, the Club would not have been
able to remove the Player from its first squad and could not have registered the
replacement player. The Club therefore maintains that it had to sign the agreement, “even
if there were unfair pointers in the context.”
15.
The requests for relief of the Respondent were the following:
“1. to dismiss the claim of the claim[sic] of the claimant
2. to ask the claimant to consider the principle of equity and fairly revise his requests in his
claim
3. to invite and grant time to the parties to resolve the matter amicably.”
c.
Claimant’s Rejoinder
Page 5
REF FPSD-14298
16.
In his replica, the Claimant reiterated his position and prayers for relief as expressed in
his claim.
17.
The Player argued that the Club’s observations regarding the Club’s right to terminate the
Employment Contract are irrelevant: first, because the termination clause in Clause 3 of
the Employment Contract was invalid, as per the well-established jurisprudence of FIFA
and CAS and the FIFA RSTP; second, because the Settlement Agreement had a “novative”
effect pursuant to its Clause 7, replacing in full any provision or obligation under the
Employment Contract. Therefore, the Club could not invoke any clause or consequence
of the Employment Contract.
18.
In particular, the Claimant noted that the reference to the USD 80,000 paid prior to
signing the Settlement Agreement had no bearing on and could not be deducted from
the amounts overdue under the Settlement Agreement.
19.
Additionally, the Player argued that the parties had agreed the acceleration clause was
automatic, applying without the need for prior formal notices. Hence the two notices
from the Player were not mandatory.
20.
In any case, the Player sent both notices via his legal counsel, who also participated in the
drafting of the Settlement Agreement, to the email addresses that the Club itself included
in the Settlement Agreement and that the parties used when exchanging drafts of the
Settlement Agreement. The legal representative even received confirmation that at least
one of the emails was duly received.
21.
Regarding the issue of taxes, the Player highlighted that the Settlement Agreement clearly
stipulates in Clause 1 that the Settled Sum is net and that there is no clause in the
Settlement Agreement that conditions payment to the Player providing an alleged tax
certificate.
22.
Finally, the Player denied the Club’s allegations regarding the context in which the
Settlement Agreement was signed, indicating that it was the Player who was pressured
into terminating. Moreover, the Player remained unemployed in the middle of the season
and was dependent upon the amounts to be paid by the Club.
d. Respondent’s Final Comments
23.
Despite being provided an opportunity to do so, the Respondent did not file any further
comments.
III. Considerations of the Dispute Resolution Chamber
Page 6
REF FPSD-14298
a. Competence and applicable legal framework
24. 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 4 April 2024 and
submitted for decision on 11 July 2024. 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.
25. 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 (June 2024), it is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Swedish player and an Iranian club.
26. 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 (June 2024 edition), and
considering that the present claim was lodged on 4 April 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
27. 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 (hereinafter: TMS).
c.
Merits of the dispute
28. 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.
i. Main legal discussion and considerations
Page 7
REF FPSD-14298
29. The foregoing having been established, the Chamber moved on to the substance of the
matter and took note of the fact that it pertains to a claim for outstanding compensation
pursuant to a Settlement Agreement signed by and between the parties, in addition to
default interest.
30. In this respect, the Chamber took note of the fact that the Settlement Agreement contains
a clear and explicit clause (Clause 7) whereby the parties stipulated that the Settlement
Agreement had the effect of novating and replacing the Employment Contract in full. This
is also reflected in Clause 5, which stipulated that upon signature of the Settlement
Agreement, the Employment Contract was immediately terminated. Therefore, in the
absence of any cogent, substantiated arguments that the Settlement Agreement was not
entered into freely and willingly by the parties, the Chamber decided to accept the
Settlement Agreement as the only valid and binding document between the parties, to the
exclusion of any considerations deriving from the Employment Contract.
31. Thereafter, the Chamber acknowledged that, while the Respondent attempted to dispute
the amount claimed by indicating that the Player had received a separate payment of USD
80,000, it was evident from the receipt provided in the file that this amount was paid long
before the Settlement Agreement was negotiated or signed, thus detracting from any
relevance it may have to the Respondent’s position. Furthermore, the Chamber noted that
the Club, who was in all likelihood the drafter of the Settlement Agreement, included an
express recognition of the outstanding remuneration owed to the Player (i.e., QAR 655,290
net) in more than one clause in the Agreement, with no discernible reservations or
objections and no mention of offsetting this amount with the earlier payment for USD
80,000. As such, the Chamber rejected the Respondent’s arguments in this sense.
32. Thereafter, the Chamber considered the Respondent’s arguments concerning the First and
Second Notice, concluding that they were also unconvincing as they remained
unsubstantiated. In the Chamber’s view, the evidence provided demonstrated that the First
and Second Notice were sent to at least one of the emails that appear in both the
Employment Contract and Settlement Agreement, thereby calling the Respondent’s
allegations further into question.
33. Moreover, the Chamber took note of the fact that the Settlement Agreement did not
stipulate any formalities concerning notifications between the parties. In fact, the Chamber
highlighted that Clause 8 stated that any notice given under the Settlement Agreement
“shall be in writing, in English language, and can be sent only via email to the addresses shown
above for its legal validity.”
34. In addition, the Chamber underscored that there did not appear to be any conditions
whatsoever to the Club’s payment obligation, noting that the Settlement Agreement was
silent on matters pertaining to tax liability and tax certificates, which contrasted with the
Page 8
REF FPSD-14298
Club’s allegations. The Chamber further noted that the Settlement Agreement only
established that the agreed amounts were net.
35. Finally, the Chamber considered that the wording of Clause 6 was clear in that, failure to
pay by the time limit set forth in the Settlement Agreement, and subsequently failing to pay
within a 5-day grace period, would automatically trigger the acceleration clause, with the
entire Settled Sum plus 5% interest p.a. becoming due.
36. Therefore, in line with the well-established principle of pacta sunt servanda, the Chamber
held that the Club was liable to pay QAR 800,910 net, in line with the explicit wording of the
Settlement Agreement.
37. As far as the claimed interest is concerned, the Chamber decided to accept the Claimant’s
contention that the full amount under the Settlement Agreement effectively became due
on 13 March 2024 (i.e., the day after the 5-day grace period to pay the overdue first
instalment expired). Therefore, in line with the wording of the Settlement Agreement, the
Chamber decided to award 5% interest p.a. over the amount of QAR 800,910 net as of 13
March 2024 until the date of effective payment.
38. The Claimant’s claim is therefore accepted vis-à-vis the outstanding compensation and
interest claimed.
ii. Compliance with monetary decisions
39. 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.
40. In this regard, the Chamber 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.
41. Therefore, bearing in mind the above, the Chamber decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the creditor, 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 club in
accordance with art. 24 par. 2, 4 and 7 of the Regulations.
Page 9
REF FPSD-14298
42. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
43. The Chamber 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
44. 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.
45. Furthermore, 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.
46. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
Page 10
REF FPSD-14298
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mr. Nabil Bahoui, is accepted.
2.
The Respondent, Persepolis Football Club, must pay to the Claimant the following
amount(s):
- QAR 800,910 net as outstanding amount plus 5% interest p.a. as of 13 March 2024 until
the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 11
REF FPSD-14298
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).
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
Page 12