Labour Disputes
Texto da decisão
REF. FPSD-8568
Decision of the
Dispute Resolution Chamber
passed on 30 March 2023
regarding an employment-related dispute concerning
the player Alberto Tomás Botia Rabasco
BY:
Frans DE WEGER (The Netherlands), Chairperson
Johan VAN GAALEN (South Africa), member
Dana MOHAMED AL-NOAIMI (Qatar), member
CLAIMANT:
Alberto Tomás Botia Rabasco, Spain
Represented by 14 Sports Law
RESPONDENT:
Al Wehdah, Saudi Arabia
Represented by R&A Sports Law
pg. 2
REF. FPSD-8568
I. Facts of the case
1.
The parties to the dispute are the Spanish player, Alberto Tomas Botia Rabasco
(hereinafter: Claimant or player) and the Saudi club, Al Wehdah (hereinafter: club or
Respondent). The Claimant and the Respondent are hereinafter jointly referred to as the
“parties”.
The first employment contract
2.
On 29 August 2019, the parties concluded an employment contract (hereinafter: the first
contract) valid as from the same date until 30 June 2021.
3.
According to the first contract, the Respondent undertook to pay the Claimant a total of
EUR 4,000,000, as follows:
For the 2019/2020 season
- an advance payment of EUR 100,000,00 net, and part of the salaries of the first year
of contract, to be paid before 5 September 2019;
- an advance payment of EUR 50,000 net, and part of the salaries of the first year of
contract, to be paid before 30 September 2019;
- an advance payment of EUR 50,000net, and part of the salaries of the first year of
contract, to be paid before 31 October 2019;
- a monthly salary of EUR 180,000 net to be paid during the months of September
2019 until June 2020 (10 months) to be paid in the last day of each month;
For the 2020/2021 season
- a monthly salary of EUR 166,666.66 net to be paid during the months of July 2020
until June 2021 (12 months) to be paid in the last day of each month.
4.
Equally, the player was entitled to the following benefits under the first contract:
-
5.
Medical insurance covering injuries, medical treatment, sickness, disability or
death during the term of the Contract;
6 (six) two-way business class flight tickets (Jeddah-Spain or Greece or Dubai);
Luxury housing in a residential compound in J One with at least three bedrooms;
Luxury vehicle;
Annual leave, dates of which shall be determined by the Club;
Work permits and Visa residence.
Likewise, the player was entitled to the following bonuses under the first contract:
-
EUR 100,000 net if the Club won the Super Cup;
EUR 100,000 net if the Club won the King’s Cup;
EUR 50,000 net if the Club won the National League;
pg. 3
REF. FPSD-8568
-
EUR 300,000 net if the Club won the AFC Champions League;
EUR 100,000 net if the Club won the Arab Champions League;
EUR 50,000 net if the Club reached the group stage of AFC Champions League.
The second employment contract
6.
On 9 February 2021, the parties decided to renew their employment relationship and
concluded a second employment contract (hereinafter: the second contract) valid as from 1
July 2021 until 30 June 2023, with an option to extend it for a further additional year.
7.
According to the second contract, the Respondent undertook to pay the Claimant the
following:
-
8.
EUR 108,333.33 net as monthly salary
EUR 25,000 as contribution to a legal consulting fee on 15 April 2021;
Medical insurance covering medical treatment and mandatory medical chekup;
8 (six) two-way business class flight tickets (Jeddah-Spain or Greece or Dubai);
Luxury housing in a residential compound with at least three bedrooms;
Luxury vehicle;
Annual leave, dates of which shall be determined by the club;
Work permits and Visa residence.
Likewise, the player was entitled to the following bonuses under the second contract:
-
EUR 105,000 net if the Club won the Super Cup;
EUR 105,000 net if the Club won the King’s Cup;
EUR 55,000 net if the Club won the National League;
(iv) EUR 305,000 net if the Club won the AFC Champions League;
EUR 105,000 net if the Club won the Arab Champions League;
EUR 55,000 net if the Club reached the group stage of AFC Champions League;
EUR 1,000 net per match win.
Notices and termination
9.
On 28 July 2021, the Claimant put the Respondent in default and requested payment of
EUR 594,988, described as follows by the Claimant, granting a 15-day deadline for the club
to cure the breach:
“(i) Two instalments under the Payment Scheduling Agreement dated 30 September 2020, due
on 31 January 2021 and on 28 February 2021 of EUR 10.000,00 each, for payment
outstanding from the previous season in the total amount of EUR 20.000,00;
(ii) Bonus for qualification to 2021 AFC Champions League, due since end of the previous
season, in the amount of EUR 50.000,00;
pg. 4
REF. FPSD-8568
(iii) The salaries of April, May and June 2021 (total of 3 months) under the Original
Employment Agreement dated 29 August 2019, due at the end of each month of EUR 166,666
per month, in the total amount EUR 499.998,00;
(iv) Legal consulting fee in relation to the Renewal Agreement dated 9 February 2021, due on
15 April 2021, in the amount EUR 25.000,00.”
10. On 23 August 2021, the player sent a second notice to the club, whereby he:
-
-
Acknowledged payment of EUR 211,666, which he allocated to his salary of April 2021
plus EUR 45,000;
Outlined that EUR 383,332 remained outstanding, regarding the bonus for
qualification to AFC Champions League (EUR 50,000) as well as salaries of May and
June 2021 (EUR 333,332);
Requested payment of his salary of July 2021 for EUR 108,333
Granted the club 5 days to comply.
11. Following the pre-season training in Slovenia and a short break thereafter, the player
allegedly was denied boarding a flight to Jeddah due to lack of visa, known as IQAMA.
Contextually, he was also informed by his landlord in Saudi that the club had stopped
paying his rent.
12. On 4 September 2021, the player terminated the second contract on the grounds of
overdue payables amounting to EUR 599,99.98 and the club’s violation of his “right to play
and ancillary obligations”.
The settlement agreement
13. On 17 September 2021, the parties signed a document titled “Settlement Agreement and
Amendment to the Contract for Football Professional Player”, whereby inter alia the parties
reconciled, with the player rescinding his termination notice and staying with the club
(hereinafter: the settlement agreement).
14. Under the settlement agreement, the parties further agreed to extend their relationship
until 30 June 2024, while the player’s salaries and benefits remained unchanged.
15. Under clauses 2.1, 2.2, 5.2 and 9 the settlement agreement, the club undertook to pay inter
alia as follows:
-
-
items 2.1 and 2.2 – the amount of EUR 216,666.66 corresponding to the salaries of
July and August 2021 (payable in two (2) instalments: one of EUR 120.000,00 due on
30 November 2021, and the other of EUR 96,666.66 due on 31 May 2022);
item 5.2 – a monthly salary in the amount of EUR 60,000 during the months of
September 2021 to June 2022;
pg. 5
REF. FPSD-8568
-
item 9.2.(i) – the amount of EUR 20,000 as damages contribution to be paid on or
before 19 September 2021;
item 9.2.(ii) – the amount of EUR 75,000 as part of the damages contribution to be
paid on or before 31 October 2021; and
item 9.2.(iii) – the amount of EUR 75,000 as part of the damages contribution to be
paid on or before 31 December 2021.
16. Between the execution of the settlement agreement and October 2022, the parties
exchanged further communications via letter or electronic messaging regarding the club’s
fail to continue to honor its contractual obligations.
17. On 20 October 2022, the player issued his 9th default notice to the club, whereby he granted
the club 15 days to cure the following breaches of the settlement agreement:
-
-
The amount of EUR 15,454 as partial remuneration of February 2022, which fell due on
28 February 2022;
The full remunerations of March, April, May and June 2022, each in the amount of EUR
60,000, in the total amount of EUR 240,000;
The amount of EUR 96,666.66 due in accordance with Item 2.2.(ii) of the settlement
agreement, which fell due on 31 May 2022;
The amount of EUR 193,333.34 due in accordance with Item 5.2.(ii) of the settlement
agreement, which fell due on 31 May 2022;
The amount of EUR 290,000 due in accordance with Item 5.2.(iii) of the settlement
agreement, which fell due on 30 June 2022;
The full remunerations of July, August and September 2022, each in the amount of EUR
108,333.,33, which fell due on 31 July 2022, 31 August 2022 and 30 September 2022
respectively, in the total amount of EUR 324,999.99;
The amount of EUR 19,000 as match win bonuses, referring to both the 2021/22 and
2022/23 sporting seasons; and
The amount of EUR 12,000 for flight tickets, referring to both the 2021/22 and 2022/23
sporting seasons.
18. On 3 November 2022, the player granted the club a final deadline of 3 days to pay, to no
avail.
19. On 8 November 2022, the player terminated his employment relationship with the club,
following which he remained unemployed.
II. Proceedings before FIFA
20. On 14 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
pg. 6
REF. FPSD-8568
21. According to the Claimant, argued he had just cause to terminate the relationship with the
Respondent on account of the latter’s repeated failures to comply with its contractual
obligations and in line with art. 14bis of the Regulations on the Status and Transfer of
Players (RSTP), the criteria of which the player argues was met.
22. The player requested the following amounts as outstanding remuneration plus 5% interest
p.a. as from the due dates:
2021-2022 SEASON
Outstanding Remuneration
Amount
Due Date
February 2022
EUR 15.454,00
28/02/22
March 2022
EUR 60.000, 00
30/03/22
April 2022
EUR 60.000, 00
30/04/22
May 2022
EUR 60.000, 00
30/05/22
Advance Payment per Item 2.1 of the
settlement agreement
EUR 193.333,34
30/05/22
Amounts due under Item 2.1 of the
settlement agreement
EUR 96.666, 66
31/05/22
June 2022
EUR 60.000, 00
30/06/22
Advance Payment
EUR 290.000,00
30/06/22
Total amount of overdue salaries
EUR 835.454,00
Match bonuses for the season 20212022
Performance bonuses for the season
2021-2022
EUR 17.000,00
SAR 140.000, 00
Flight Tickets for the season 2021-2022
EUR 9.600, 00
GRAND TOTAL
EUR 862.054, 00 +
SAR 140.000, 00
23. The player equally requested the compensation for breach of contract plus 5% interest p.a.
as from the due dates, as follows:
Monthly Salary
Amount
Due Date
October 2022
EUR 108 333,34
30/10/22
November 2022
EUR 108 333,34
30/11/22
December 2022
EUR 108 333,34
30/12/22
pg. 7
REF. FPSD-8568
January2022
EUR 108 333,34
30/01/23
February 2023
EUR 108 333,34
28/02/23
March 2023
EUR 108 333,34
30/03/23
April 2023
EUR 108 333,34
30/04/23
May 2023
EUR 108 333,34
30/05/23
June 2023
EUR 108 333,34
30/06/23
Total amount of season 2022-2023 (as from
October 2022)
EUR 975 000,00
July 2023
EUR 108 333,34
30/07/23
August 2023
EUR 108 333,34
30/08/23
September 2023
EUR 108 333,34
30/09/23
October 2023
EUR 108 333,34
30/10/23
November 2023
EUR 108 333,34
30/11/23
December 2023
EUR 108 333,34
30/12/23
January2024
EUR 108 333,34
30/01/24
February 2024
EUR 108 333,34
28/02/24
March 2024
EUR 108 333,34
30/03/24
April 2024
EUR 108 333,34
30/04/24
May 2024
EUR 108 333,34
30/05/24
June 2024
EUR 108 333,34
30/06/24
Total amount of season 2023-2024
EUR 1 300 000,00
GRAND TOTALOF COMPENSATION
EUR 2.275.000,00
24. Lastly, the player requested that sporting sanctions be applied on the club.
b. Position of the Respondent
25. In its reply, the Respondent out lined the following, while presenting no evidence in support
of its argumentation other than copies of the multiple contracts executed with the club and
some of the notices exchanged between the parties (quoted verbatim):
“• Regarding the overdue payable:
pg. 8
REF. FPSD-8568
22- Preliminary to any legal discussion we draw your kind attention that the total overdue is
equal to 1159454 EUR
23- It is strange that the player claims an extra bonus of EUR 19000+SAR 140000 when the
club has never provided or decided or allowed such bonuses.
24- The claimant didn’t provide any proof that the above-mentioned bonuses exist or allowed
by the respondent and thus the request of such bonuses must be dismissed.
25- Regarding the flight tickets we draw you attention that the player didn’t provide any proof
that he paid such flight tickets from his own money and hence this request also has to be
dismissed.
26- Consequently the only outstanding amount is 1159454 EUR.
27- Notwithstanding, the present matter represents a typical case of hardship situation
leading to the applying of the theory of unpredictability.
28- The doctrine of Theory of Unpredictability (“rebus sic stantibus” clause) is generally
accepted by international doctrine. In particular, this theory is also accepted by the Swiss
legislation applicable in the case and it is also accepted by the Unidroit principles, known as
the “hardship” clause.
29- This doctrine constitutes an exception to the general principle pacta sunt servanda.
30- The case is framed in the supervening “excessive onerosity” (hardship) of the obligations
of the claimant, due to unforeseen facts and circumstances that have altered the equilibrium
of the Agreement.
31- Unidroit principles1 defines the hardship as follows:
ARTICLE 6.2.2 (Definition of hardship)” There is hardship where the occurrence of events
fundamentally alters the equilibrium of the contract either because the cost of a party’s
performance has increased or because the value of the performance a party receives has
diminished, and (a) the events occur or become known to the disadvantaged party after the
conclusion of the contract;
(b) the events could not reasonably have been taken into account by the disadvantaged party
at the time of the conclusion of the contract
(c) the events are beyond the control of the disadvantaged party; and
(d) the risk of the events was not assumed by the disadvantaged party. »
32- All the precautions and conditions listed in the aforementioned Art.6.2.2 are met in
the case:
- the events are beyond the control of the disadvantaged party.
pg. 9
REF. FPSD-8568
- The "events" in question are economic and financial hard difficulties due to the persistence
of the negative effects of the COVID-19 pandemic in Saudi Arabia and around the world which
was "unpredictable" at the time of signing the renewal agreement.
33- We also reiterate that these difficulties do not belong to AL WEHDAH, but they are rather
part of the general crisis, and above all in accordance with UNIDROIT principle cited in the
definition of “hardship” (events are beyond the control of the disadvantaged party”)
34- The respondent could not have any control on this critical confluence of "events", national
and worldwide.
35- In addition, the relegation of the club to the lower league and the pressure made by the
player to get more advantaged contract with the club in counterpart to the cancellation of
the termination notified on 04 September 2021.
36- For that reason, the DRC has the power to reschedule the payment of the outstanding
amount as it is provided by article 6/2/3 of UNIDROIT Principles
37- ARTICLE 6.2.3 (Effects of hardship) (1) In case of hardship the disadvantaged party is
entitled to request renegotiations. The request shall be made without undue delay and shall
indicate the grounds on which it is based. (2) The request for renegotiation does not in itself
entitle the disadvantaged party to withhold performance. (3) Upon failure to reach agreement
within a reasonable time either party may resort to the court.(4) if the court finds hardship it
may, if (a) terminate the contract at a date and on terms to be fixed, or (b) adapt the contract
with a view to restoring its equilibrium.
38- Starting from the above we request that the outstanding amount will be split and
scheduled as follows:
- 165636 EUR payable on 25 February 2023.
- 165636 EUR payable on 15 March 2023.
- 165636 EUR payable on 15 April 2023 .
- 165636 EUR payable on 15 May 2023 .
- 165636 EUR payable on 15 June 2023 .
- 165636 EUR payable on 15 July 2023 .
- 165636 EUR payable on 15 August 2023 .
• Regarding the good faith of the club:
39- Firstly, and foremost we will not discuss legal issue of the termination which was made
according to article 14 bis RSTP but we have to highlight the good faith of the club who did
its maximum to avoid the termination and further to convince the player to retract from his
decision.
40- As explained above the respondent did its best to keep the contractual relationship
by:
pg. 10
REF. FPSD-8568
• Signing a new agreement on 17/09/2021 with a hard sacrifice:
*The optional season 2023/2024 became effective.
*An extra amount of 170000 USD was paid to the player as extra-contractual
compensation.
• Sending many proposals to settle the overdue especially:
*Letter dated on 21/06/2022 (E-W-6)
*Letter dated on 12/07/2022 (E-W-7)
*Letter dated on 03/11/2022 (E-W-4)
*Draft of settlement agreement dated on 14/12/2022 (E-W-5)
• Contacting directly the player and via his counsel by WhatsApp and phone’s call in order to
convince him to withdraw the termination.
41- it is crystal clear that the will of the club was to continue the contractual relationship but
unfortunately the claimant has never showed any interest to respond to all those attempts.
42- Obviously, the respondent has acted with good faith but the precarious financial situation
didn’t allow it to avoid the termination which is regrettable.
In light of the above we respectfully ask the committee to:
Mainly
1. to reschedule the outstanding amount as follow:
- 165636 EUR payable on 25 February 2023.
- 165636 EUR payable on 15 March 2023.
- 165636 EUR payable on 15 April 2023 .
- 165636 EUR payable on 15 May 2023 .
- 165636 EUR payable on 15 June 2023 .
- 165636 EUR payable on 15 July 2023 .
- 165636 EUR payable on 15 August 2023 .
2. To mitigate the compensation according to article 17 RSTP.
3. Reject the request of sportive sanction”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 14 December 2022 and
submitted for decision on 30 March 2023. Taking into account the wording of art. 34 of the
October 2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter:
pg. 11
REF. FPSD-8568
the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
27. 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 a player from Spain
and a club from Saudi Arabia.
28. 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 14 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
29. 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
30. 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
31. 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 justice of the early
termination of the contractual relationship by the Claimant, based on the alleged nonpayment of certain financial obligations by the Respondent as per their contracts, in
accordance with art. 14bis of the Regulations.
pg. 12
REF. FPSD-8568
32. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
33. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
34. The Chamber noted that the Claimant claims not having received his remuneration
amounting to EUR 1,191,454 plus SAR 140,000 related to the years 2021 and 2022.
Furthermore, the Chamber noted that the Claimant has provided written evidence of
having put the Respondent in default on 20 October 2022, i.e., at least 15 days before
unilaterally terminating the contractual relationship on 8 November 2022.
35. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contracts concluded
between the parties. Nonetheless, the Respondent is not challenging the termination, but
argued that some of the bonuses and flight tickets claimed are not supported by evidence.
They equally recalled their alleged good faith and argued that the principle clausula rebus
sic stantibus applies, without further evidence in this support.
36. Considering that the amounts due under the amended second contract stood in fact
unchallenged, the Chamber concluded that the Claimant had a just cause to unilaterally
terminate the employment relationship, based on art. 14bis of the Regulations.
ii. Consequences
37. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach committed by the Respondent.
38. The Chamber observed that the outstanding remuneration claimed by the Claimant largely
stood undisputed by the club, excepts for the concepts detailed below. As such, 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 following amounts which were
outstanding to the player at the moment of the termination. 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 their respective due dates until the date of effective
payment.
pg. 13
REF. FPSD-8568
Outstanding Remuneration
Amount
Due Date
Interest as from
Feb-22
EUR 15,454.00
28/02/2022
01/03/2022
Mar-22
EUR 60,000.00
30/03/2022
31/03/2022
Apr-22
EUR 60,000.00
30/04/2022
01/05/2022
May-22
EUR 60,000.00
30/05/2022
31/05/2022
Advance payment
EUR 193,333.34
30/05/2022
31/05/2022
Advance payment
EUR 96,666.66
31/05/2022
01/06/2022
Jun-22
EUR 60,000.00
30/06/2022
01/07/2022
Advance payment
EUR 290,000.00
30/06/2022
01/07/2022
Jul-22
EUR 108,333.33
31/07/2022
01/08/2022
Aug-22
EUR 108,333.33
30/08/2022
31/08/2022
Sep-22
EUR 108,333.33
30/09/2022
01/10/2022
TOTAL
EUR 1,160,453.99
39. The Chamber then turned to the to the bonuses and flight tickets sought by the Claimant
and challenged by the Respondent on the grounds of lack of evidence. Indeed, the
Chamber confirmed that it was the burden of the Claimant to demonstrate, via credible
and reliable evidence, that the sporting events triggering his entitlement to the conditional
payments sought had taken place. However, the DRC confirmed that no supporting
evidence has been filed, and therefore it had no option but to reject this part of the claim.
The Chamber clarified that the same reasoning applied mutatis mutandis to the flight
tickets, in that the Claimant has filed no evidence to demonstrate the expenses incurred
with the claimed flight tickets – or how those amounts had been calculated.
40. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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.
41. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contracts 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
pg. 14
REF. FPSD-8568
established that no such compensation clause was included in the employment contracts
at the basis of the matter at stake.
42. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player 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.
43. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contractual
arrangement from the date of its unilateral termination until its end date. Consequently,
the Chamber concluded that the amount of EUR 2,275,000 net (i.e., the residual value of
the amended second contract) serves as the basis for the determination of the amount of
compensation for breach of contract. On this note, the DRC highlighted that no benefits in
kind, albeit contractually indicated, were requested by the Claimant. As such, and following
the principle ne ultra petita, the DRC confirmed that these concepts would not be factored
into the calculation.
44. In continuation, the Chamber verified as to whether the player 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 player’s general obligation to
mitigate his damages.
45. Indeed, the player did not find new employment. As such, 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, and
mitigation existed. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e., overdue payables by the club, but because
no mitigation took place and the overall compensation (including any additional
compensation) cannot exceed the value of the prematurely terminated contract, the DRC
decided that the player shall not receive additional compensation.
46. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 2,275,000 net to the player, which was considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
47. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
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REF. FPSD-8568
compensation at the rate of 5% p.a. as of the date of termination of the employment
relationship until the date of effective payment.
iii. Compliance with monetary decisions
48. 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.
49. 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.
50. 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.
51. 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.
52. 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
53. 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.
54. 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.
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REF. FPSD-8568
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8568
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alberto Tomás Botia Rabasco, is partially accepted.
2.
The Respondent, Al Wehdah, must pay to the Claimant the following amount(s):
a. EUR 15,454 net as outstanding remuneration plus 5% interest p.a. as from 1 March 2022
until the date of effective payment;
b. EUR 60,000 net as outstanding remuneration plus 5% interest p.a. as from 31 March
2022 until the date of effective payment;
c. EUR 60,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
d. EUR 60,000 net as outstanding remuneration plus 5% interest p.a. as from 31 May 2022
until the date of effective payment;
e. EUR 193,333.34 net as outstanding remuneration plus 5% interest p.a. as from 31 May
2022 until the date of effective payment;
f.
EUR 96,666.66 net as outstanding remuneration plus 5% interest p.a. as from 1 June
2022 until the date of effective payment;
g. EUR 60,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2022
until the date of effective payment;
h. EUR 290,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2022
until the date of effective payment;
i.
EUR 108,333.33 net as outstanding remuneration plus 5% interest p.a. as from 1 August
2022 until the date of effective payment;
j.
EUR 108,333.33 net as outstanding remuneration plus 5% interest p.a. as from 31
August 2022 until the date of effective payment;
k. EUR 108,333.33 net as outstanding remuneration plus 5% interest p.a. as from 1
October 2022 until the date of effective payment.
l.
3.
EUR 2,275,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 8 November 2022 until the date of effective payment.
Any further claims of the Claimant are rejected.
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REF. FPSD-8568
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
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REF. FPSD-8568
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
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
pg. 20