Dispute Resolution Chamber
Texto da decisão
REF 20-01614
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021,
regarding an employment-related dispute concerning the player Abdenasser El Khayati
COMPOSITION:
Omar Ongaro (Italy)
Angela Collins (Australia)
Stefano La Porta (Italy)
CLAIMANT:
Abdenasser El Khayati, Netherlands
Represented by Mr. Lorin Burba
RESPONDENT:
Qatar SC, Qatar
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REF 20-01614
I. FACTS OF THE CASE
1. On 25 July 2019, the Player and the Club signed an employment contract valid from 1 August
2019 until 31 May 2021.
2. Pursuant to Schedule 1 of the contract, the Club should have remunerated the Player as
follows:
(a)
For the football season 2019/2020, with a total amount of USD 1,474,000, consisting
of:
fixed salary of USD 139,000 per month, payable for ten months, for the period
between August 2019 and May 2020, in total amount of USD 1,390,000;
-
housing and car allowance in the amount of USD 5,900 per month, payable for
the period between August 2019 and May 2020, for a total amount of USD
59,000;
-
annual flight tickets costs in the amount of USD 25,000.
(b)
For the football season 2020/2021, with a total amount of USD 1,664,900, consisting
of:
-
fixed salary of USD 157,500 per month, payable for ten months, for the period
between August 2020 and May 2021, in total amount of USD 1,575,000;
-
housing and car allowance in the amount of USD 5,900 per month, payable for
the period between July 2020 and May 2021, for a total amount of USD 64,900;
-
annual flight tickets costs in the amount of USD 25,000.
3. Furthermore, art. 6 par. 1 of the contract provided that the Player was entitled to 30 days
of paid leave, which was supposed to be benefited during match-free periods.
4. On 4 October 2020, the Club notified to the Player the official notice for the unilateral
termination of the employment relationship between the parties. In the same letter, the
club recognized the Player’s right for remuneration as per the contract.
5. On 5 October 2020, the Player replied to the Club concerning the unilateral termination
of the contract, and informed the Club of his intent to initiate judicial proceedings in front
of FIFA, where he would seek legal and financial remedies if the Club did not pay the total
compensation of USD 2,754,000 within 5 days of receiving the notification.
6. On 11 October 2020, in absence of any informal or formal communications by the Club,
the Player notified to the Club that the only solution left to him for protecting his legal
interests was the filing of a claim in front of FIFA’s competent legal bodies, following
the abrupt and immediate termination of the contract without just cause.
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7. On 6 November 2020, the Player filed a claim against the Club before FIFA requesting the
following:
Order the Club be ordered to pay USD 289,800 as outstanding salaries, plus 5% interest
p.a. until the effective date of payment as follows:
-
on the amount of USD 144,900 as of 1 July 2020;
on the amount of USD 144,900 as of 1 August 2020;
Order the Club to pay USD 1,332,200 as compensation for breach of contract,
corresponding to the residual value of the contract, plus 5% interest p.a. as of 5 October
2020 until the date of effective payment;
USD 926,400 as an additional indemnity, under the principles of “positive interest” and
“specificity of sport“, plus 5% interest p.a. as of 5 October 2020 until the date of effective
payment;
Impose disciplinary sanctions on the Club.
8. In support of his claim, the Player submitted that initially, the duration of the football season
2019/2020 was scheduled until the end of the month May 2020. Nevertheless, due to
the COVID-19 virus outbreak, the end of the football season was suspended as of 14 March
2020.
9. The Player added that for the period between 14 March 2020 until the effective
recommencement of the Qatar Stars League (24 July 2020), he remained at the Club’s
disposal, i.e. did not leave the territory of the State of Qatar, and continued his training
and sporting preparation as ordered by the Club.
10. After the end of the football season 2019/2020, the Club allegedly informally communicated
to the Player its intent to terminate the employment relationship, since the Player was not
considered important for the sporting project of the Club for the upcoming season.
11. In such circumstances, the Player submitted that he authorized his legal representative to
draft an official letter for the Club, in order to communicate to the latter his position as
to the calculation of the amounts owed by the Club (overdue, due or upcoming) and on
30 September 2020, the Player notified the Club his position that he is entitled to the total
residual value of the contract.
12. After receiving such letter, the Club allegedly increased pressure towards the Player, with
the intention to force him to accept the proposal for the mutual termination of the
contract. Thus, on the same date, i.e. 30 September 2020, the Club notified to the Player,
via email, the new individual training regime, according to which:
a) the Player was obliged to train individually in 2 training sessions, i.e. at 0.00 am and
at 08.00 am, for a duration of 2 hours each training session and
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b) after or in between the individual training sessions, the Player also participated in the
Club’s first team training, scheduled at 05.00 pm.
13. Within hours of receiving the email from the Club, the Player apparently sent an official
letter to the Club objecting the new training regime, on the following grounds:
-
-
-
the excessive and abusive nature of such regime, with emphasis on the imposed
schedule, i.e. a two hours training session at midnight and another one of the
same length at 8.00 am;
The excessive and abusive nature of such regime, on the grounds of art. 14
par. 2 of the RSTP, which categorizes the club's comportment as abusive and aiming
to force the Player to unilaterally terminate the contract;
The unnecessity of such regime, considering that the Player was fully healthy
and in good physical conditions;
The discriminatory nature of such regime, considering that the Player was the
only professional of the Club’s first team to have this kind of sporting regime.
14. Furthermore, by the same letter, the Player submitted that he requested information in
connection with the new training regime, such as: the alimentary treatment, the recovery
program and the program of the individual training sessions. According to the Player, this
request was made in order for him to have clarity about his duties as a professional and
mostly, to mitigate any risk for potential injuries incurable whilst following said regime. In
this context, the Player reserved his right to not participate in the individual training
sessions, in case the Club did not provide the requested information. Simultaneously, the
Player also requested the results of the fitness tests held on the same date, i.e. 30
September 2020, at Aspire Academy Dome in Doha, tests in which all the Players of the
Club’s first team participated in.
15. On 2 October 2020, the Player informed the Club that he would not be able to attend
the individual training sessions as a precaution for the avoidance of any potential injuries.
16. Following the aforementioned events, the Player submitted that on 4 October 2020, the Club
sent him the official notice for the unilateral termination of the contract.
17. With the above in mind, the Player proceeded to examine whether the Club terminated the
contract with or without just cause and noted that the Club, in its notice of termination of
contract, did not indicate any reason of any nature for the premature termination of the
contract.
18. The Player further submitted that it can be noted from the termination notice that the Club
acknowledged the obligation to pay all the contractual remuneration to the Player pursuant
to the contract, meaning that the Club was conscious and aware about the fact that no
just cause existed for such termination.
19. The Player stressed that he has never breached the contract or the Club’s internal disciplinary
regulations that would give the Club a basis to take any legal action against him and that he
has always acted diligently and professionally during the employment relationship with the
Club.
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20. In view of the above, the Player submitted that the Club terminated the contract without just
cause and stated that for season 2020/2021, he was entitled to a total remuneration amounting
to USD 1,664,900 and that the club paid total of USD 332,700 as follows:
-
The monthly salaries of August 2020 and September 2020, each amounting to
USD 157,500, for a total of USD 315,000;
The allowances for the months July 2020, August 2020 and September 2020, each
amounting to USD 5,900, for a total of USD 17,700.
21. Consequently, according to the Player, it resulted that the remaining balance of the
remuneration that the Club should have paid if the contract had been executed normally
amounts to USD 1,332,200.
22. Additionally, according to the Player, the employment relationship between the parties would
have expired on 31 May 2021 and with its expiration in less than 2 full years as from the
start date, i.e. 25 July 2019, the unilateral termination by the Club therefore falls within the
protected period, as stipulated in the FIFA Regulations.
23. The Player stated that taking into consideration that, as of the date of lodging this claim,
he has not signed any employment agreement with other third-party clubs, the provisions
of art. 17. par. 1, lit i. of the RSTP are directly applicable. Therefore, as a compensation for
the breach of the contract, he should receive the complete residual value of the Contract
prematurely terminated by the Club, in the amount of USD 1,332,200.
24. According to the Player, the above compensation is not all that he is entitled to because the
contract was prematurely terminated by the Club during the course of the football season,
i.e. on 4 October 2020, with the season having already commenced, and with the summer
transfer window being closed in most countries. The Player added that due to this period of
inactivity at his age, he has the risk of suffering irreparable harm to his career.
25. In view of the above, the Player submitted that the above mentioned compensation for the
breach of contract amounting to the residual value of the contract does not suffice and
cannot cover the whole damages incurred. Therefore, he submitted that additional
compensation of USD 926,400 (amounting to 6 months’ salary) should be accorded to him
under the principles of “specificity of sport” and “positive interest” in accordance with art
337c of the Swiss Code of Obligations and art 17.1 RSTP”.
26. The Player further submitted that pursuant to article 6 of the contract he was entitled to one
month’s leave and that he did not benefit from this leave due to the extension of the duration
of the 2019/2020 football season, mostly dictated by the outbreak of the COVID-19 virus.
The Player added that pursuant to Schedule 1 of the Contract, the parties had agreed that
the Club would had remunerated the Player only for the services performed during the
football season 2019/2020, i.e. from August 2019 to May 2020. This meant that for the
period when the player was not performing services in the Club’s favour, the latter was
not obliged to make any payments. Notwithstanding, the Player did not only benefit from
his right for 30 days leave but actually worked for the Club for a period not foreseen by
the contract.
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27. As a result, the Player submitted that by having its employee work for free for a duration
of 2 months, the Club generated an “unjust enrichment”, especially when during this
period, the Player allegedly covered all living costs by himself.
28. The Player added that pursuant to article 62 par. 1 of the Swiss Code of Obligations, a party
having been enriched without licit cause at the expenses of another party is obliged to
return back such benefit.
29. In this perspective, the Player submitted that with the months of June 2020 and July 2020
being a natural extension of the duration of the football season 2019/2020, the amount
of monthly salaries receivable by the Player for this period should be in the same amount
as the monthly salaries already received from the Club during the previous period, i.e.
the monthly salary during the football season 2019/2020 amounting to USD 139,000 per
month.
30. Therefore, according to the Player, the Club owes him the total amount of USD 278,000 as
overdue payables, to which should be added two monthly housing and car allowances
amounting to USD 11,800.
31. Despite being invited to do so, the Respondent did not respond to the claim.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as `the DRC’) analysed
whether it was competent to deal with the case at hand. In this respect, it took note that the
Claimant’s claim was lodged on 6 November 2020 and was decided on 6 May 2021. Taking into
account the wording of art. 21 of the 2021 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
2. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that in
accordance with art. 24 par. 1 and par. 2 in conjunction with art.22 lit. b of the Regulations on
the Status and Transfer of Players (edition October 2020), it is competent to deal with the matter
at stake, which concerns an employment-related dispute with an international dimension
between a Dutch player and a Qatari club.
3. Furthermore, the DRC 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 par. 2 of the
Regulations on the Status and Transfer of Players (edition February 2021), and considering that
the present claim was lodged on 6 November 2020, the October 2020 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
4. The competence of the DRC and the applicable regulations having been established, the DRC
entered into the substance of the matter. Subsequently, the DRC continued by acknowledging
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the above-mentioned facts as well as the documentation contained in the file in relation to the
substance of the matter. However, the DRC emphasized that in the following considerations he
will refer only to the facts, arguments and documentary evidence, which it considered pertinent
for the assessment of the matter at hand.
5. Entering into the substance of the matter at hand, the DRC first of all acknowledged that on 25
July 2019, the Player and the Club entered into an employment contract valid from 1
August 2019 until 31 May 2021.
6. Furthermore, the DRC noted that in accordance with the contract, the Player was entitled to the
amount of USD 1,474,000 for the 2019/2020 season and the amount of USD 1,664,900 for the
2020/2021.
7. Having recalled the above, the DRC observed that, the Player, in his claim lodged on 6 November
2020, claimed outstanding remuneration in the amount of USD 289,800 for the months of June
and July 2020, plus 5% interest p.a. as from the due dates, compensation for breach of contract
in the amount of USD 1,332,200 plus 5% interest p.a. as of 5 October 2020 and USD 926,400
as additional indemnity.
8. In continuation, the DRC took note of the fact that the Club failed to present its response to the
claim of the Player, in spite of having been invited to do so. By not presenting its position to the
claim, the DRC was of the opinion that the Club renounced its right of defence and, thus,
accepted the allegations of the Player.
9. Furthermore, as a consequence of the aforementioned consideration, the DRC concurred that in
accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of
the documentation already on file; in other words, upon the statements and documents
presented by the Player.
10. Based on the foregoing circumstances, the DRC acknowledged that it had to examine whether
the termination of the contract made by the Respondent on 4 October 2020 was made with or
without just cause.
11. In this respect, the DRC noted that the Club ,in its notice of termination of contract dated 4
October 2020, did not indicate any reason for the premature termination of the contract.
The DRC further noted that in the termination notice, the club acknowledged the obligation to
pay the contractual remuneration to the Player pursuant to the contract.
12. The DRC deemed it at this point relevant to refer to its well-established jurisprudence, which
dictates that only a breach or misconduct which is of a certain severity justifies the termination
of a contract. In other words, only when there are objective criteria, which do not reasonably
permit to expect a 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 ensure the employee’s fulfilment of his contractual duties, such
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measures must be taken before terminating an employment contract. A premature termination
of an employment contract can only ever be an ultima ratio measure.
13. On account of the above, the DRC decided that the Club had no just cause to unilaterally
terminate the employment relationship between the Player and the Club and, therefore,
concluded that the Respondent had terminated the employment contract without just cause on
4 October 2020. It follows from this considerations that, consequently, the Club is to be held
liable for the early termination of the employment contact without just cause, and has to pay
outstanding remuneration and compensation for breach of contract to the Player.
14. Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract without just cause by the
Respondent.
15. In order to determine whether any outstanding remuneration was due as claimed by the Player,
the DRC noted that even though the 2019/2020 season was scheduled to expire in May 2020,
the parties extended it for two months as a result of the outbreak of the COVID-19 pandemic.
16. With the above in mind, the DRC took note of the Player’s request for outstanding remuneration
for the extended period of June and July 2020 and agreed that based on the documentation on
file, the contract had indeed been extended by the parties until July 2020. The Chamber took
into account that the Player had provided his services to the Club during this time and that as a
result, in view of the principle of pacta sunt servanda, the Club should pay the Player the
outstanding remuneration for the months of June and July in the total amount of USD 289,800
(USD 144,900 x 2).
17. What is more, in line with the well-established jurisprudence of the DRC and PSC in this respect,
as well as taken into account the request of the Player, the DRC decided to award 5% interest
p.a. on the amount of USD 289,800 as from the respective due dates.
18. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of
contract in addition to any outstanding salaries on the basis of the relevant employment contract.
19. In this context, the DRC outlined that, in accordance with said provision, 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.
20. In application of the relevant provision, the DRC held that it first of all had to clarify whether the
pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a compensation payable by the contractual parties in the event of
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breach of contract. In this regard, the DRC established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
21. Subsequently, and in order to evaluate the compensation to be paid by the Club, the DRC took
into account the remuneration due to the Player in accordance with the employment contract as
well as the time remaining on the same contract, along with the professional situation of the
Player after the early termination occurred. Taking into account the Player’s submission that the
Club paid USD 332,700 for the 2020/2021 season and the fact that the total amount due for the
2020/2021 season was USD 1,664,900, the DRC concluded that the remaining value of the
contract as from its early termination by the Club on 4 October 2020 until the regular expiry of
the contract on 31 May 2021 amounted to USD 1,332,200 (USD 1,664,900 – USD 332,700) and
that such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
22. In continuation, the DRC noted that the Player informed FIFA that after the unilateral termination
of the contract by the Club, he had not signed a new contract and therefore was unable to
mitigate his damages.
23. It follows from the aforementioned facts, that – in view of the fact that the Player remained
unemployed - that also no additional compensation as per art. 17 of the Regulations shall be
awarded to the Claimant.
24. In view of all of the above, the DRC decided that the Club must pay the total amount of USD
1,332,200 to the Player, which is considered by the DRC judge to be a reasonable and justified
amount as compensation for breach of contract, as it reflects the objectives of art. 17 of the
Regulations, to put the Player in the same position as though the contract had not been
terminated, while giving attention to the “specificity of sport”..
25. What is more, in line with the well-established jurisprudence of the DRC and PSC in this respect,
as well as taken into account the request of the Claimant, the DRC decided to award 5% interest
p.a. on the amount of USD 1,332,200 as from the date of the claim, i.e. 6 November 2020.
26. Finally, the Chamber decided to reject any further claim lodged by the Claimant. As a result, the
claim is partially accepted.
27. Furthermore, taking into account the consideration under number II./3. above, the DRC 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 amounts of outstanding remuneration and/or compensation
in due time.
28. In this regard, the DRC 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.
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29. Therefore, bearing in mind the above, the DRC decided that, in the event that the Club does not
pay the amount due to the Player within 45 days as from the moment in which the Player,
following the notification of the present decision, communicates the relevant bank details to the
club, 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 club
in accordance with art. 24bis par. 2 and 4 of the Regulations.
30. Finally, 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. 24bis par. 3 of the
Regulations.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Abdenasser El Khayati, is partially accepted.
2. The Respondent, Qatar SC, has to pay the Claimant the outstanding amount of USD 289,800
plus 5% interest p.a. calculated as follows
- 5% interest p.a. on the amount of USD 144,900 as of 1 July 2020 until the date of effective
payment;
- 5% interest p.a. on the amount of USD 144, 900 as of 1 August 2020 until the date of effective
payment.
3. The Respondent has to pay the Claimant USD 1,332,200 as compensation for breach of contract
plus 5% p.a. interest as of 6 November 2020.
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 amounts as per points 2. and 3. above.
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).
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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
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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