Labour Disputes
Texto da decisão
REF. FPSD-14260
Decision of the
Dispute Resolution Chamber
passed on 26 June 2024
regarding an employment-related dispute concerning
the player Mahdi Faisal Ebrahim Alhumaidan
BY:
Tomislav KASALO (Croatia)
CLAIMANT:
Mahdi Faisal Ebrahim Alhumaidan, Barhain
Represented by 14 Sports Law
RESPONDENT:
Salmiya SC, Kuwait
Represented by Pedro Macieirinha
pg. 2
REF. FPSD-14260
I. Facts of the case
1.
On 13 March 2023, the Bahraini player, Mahdi Faisal Ebrahim Alhumaidan (hereinafter: the
Player or the Claimant) and the Kuwaiti club, Salmiya SC (hereinafter: the Club or the
Respondent) concluded an employment contract valid as from 15 January 2024 until 31 May
2024.
2.
The Club undertook to pay the Player a total amount of USD 130,000 for the duration of
the contract.
3.
On 3 February 2024, the Player and the Club concluded mutual termination agreement of
the employment contract (hereinafter: the termination agreement).
4.
Clause 2 of the termination agreement reads as follows:
“The [Club] shall pay to the Player (the Second Party) the total value of the Employment
Contract, which amounts to USD 130.000 (one hundred thirty thousand US dollars).
This amount shall be paid as follows: the amount of USD 40.000 shall be paid by no
later than 1/3/2024.
The remaining amount of USD 90.000 shall be distributed in four equal monthly
installments of USD 22.500, payable at the end of each respective month, starting as
from April 2024 until July 2024.”
5.
Clause 3 of the termination agreement reads as follows:
“The [Club] certifies the mutual termination of the Employment Contract by virtue of
this Agreement and also confirms that the receipt of the rights and due funds
stipulated in Article (2) above shall be considered as complete fulfilment of all agreed
financial rights and dues resulting from the Employment Contract dated 13/1/2024,
whether such rights derive from basic salary, additional cash and in-kind allowances,
compensation, or any other normal or exceptional source. Upon receipt of payment
of the amounts stipulated in Article (2), the [Club] will grant to the [Player] complete,
general and final clearance which cannot be recalled, and as such the [Player] waives
any and all rights or claims, present or future, regardless their type or form against
the [Club], apart from the amounts stipulated in the Article above.”
6.
On 18 March 2024, the Claimant put the Respondent in default of payment of USD 40,000;
setting a 10 days’ time limit in order for the Respondent to remedy the default.
7.
On 24 March 2024, the Claimant sent the Respondent a reminder of payment as per the
default notice.
pg. 3
REF. FPSD-14260
II. Proceedings before FIFA
8.
On 1 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
9.
According to the Claimant, the employment contract was terminated due to the Club’s
failure to effectively register the Player, and that both parties concluded the mutual
termination agreement. However, the Club failed to pay the first instalment of the
termination agreement in the amount of USD 40,000.
10. Therefore, the Claimant requested the following relief:
“(i) Enforce its jurisdiction over the dispute at stake;
(ii) Order Al Salmiya Sporting Club to proceed to the effective payment of the total net
amount of USD 40.000 (forty thousand US dollars) which corresponds to the first
instalment under the Termination Agreement dated 3 February 2024;
(iii) Determine that an interest rate of 5% per annum shall apply over the outstanding
amount of USD 40.000, the pertinent calculation of which shall start as from 2 March
2024 until the date of the effective payment;
(iv) Order Al Salmiya Sporting Club to bear any and all legal costs as to the present
dispute.”
b. Position of the Respondent
11. In its reply, the Respondent requested FIFA to reject the claim.
12. The Respondent stressed that:
“The Claimant have signed the employment contract with the Respondent, under a
loan transfer agreement made with his former club, the Al-Khaldiya FC. The
Respondent in fact haven't reached the necessary means to register the Claimant. At
the same time, the club Al-Khaldiya, according to the Claimant, have informed him,
that he wouldn't have a place on the team, and cut him off. Therefore, the Claimant
engaged conversations with the Respondent, by stating that he didn't have no club to
go, and that he would be six months without playing. Thus, according to the facts of
the abovementioned, the Respondent on good faith, have reached the Termination
Agreement, in the will of the player still had remuneration, since it couldn't sign for a
third club, by the following instalment […]The true his after the signature of the
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REF. FPSD-14260
termination agreement, the Claimant was announced by his actual club, the Al Nasr
from Oman Such facts constitute unjust enrichment by the Claimant, towards the
Respondent.
And therefore, the amounts established in the Termination Agreement shall be
mitigated, with the amounts of the actual employment contract of the Claimant with
the Al Nasr from Oman”.
13. The Respondent also referred to art. 62 and 65 of the Swiss code of obligations and art. 17
of the Regulations on the Status and Transfer of Players, and that the new value of the
contract is to be mitigated.
14. The Respondent requested the following request:
“A) The claim shall be rejected.
B) The Respondent shall not be condemned to pay USD 40,000 as outstanding
remuneration plus 5% interest per annum as from 2 March 2024 until the date of
effective payment;
C) Such amount shall be mitigated in accordance with the actual employment contract
of the Claimant with the club Al Nasr from Oman.”
pg. 5
REF. FPSD-14260
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge (hereinafter also referred to as Single Judge) analysed whether
he was competent to deal with the case at hand. In this respect, he took note that the
present matter was presented to FIFA on 1 April 2024 and submitted for decision on 26
June 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.
16. Subsequently, the Single Judge 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), he
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an Bahraini player and a Kuwaiti club.
17. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 1 April 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
18. For sake of clarity, the Single Judge remarked that the Respondent referred in its
submissions to Swiss law. In this respect, the Single Judge wished to recall that when
deciding a dispute before the Dispute Resolution Chamber, FIFA’s regulations prevail over
any national law that the parties might have chosen. In this regard, the Single Judge
emphasised that the main objective of the FIFA regulations is to create a standard set of
rules to which all the actors within the football community are subject to and can rely on.
This objective would not be achievable if the Single Judge would have to apply the national
law of a specific party on every dispute brought to it. By the same token, the Single Judge
wished to point out that it is in the interest of football that the cases are based on uniform
criteria rather than on provisions of national law that may vary considerably from country
to country. Therefore, the Single Judge deemed that it is not appropriate to apply the
principles of a particular national law but rather the Regulations, general principles of law
and, where existing, the Football Tribunal’s well-established jurisprudence.
b. Burden of proof
19. The Single Judge 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 Single Judge
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REF. FPSD-14260
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
20. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge 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
21. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the payment of certain
financial obligations by the Respondent as per the termination agreement, namely USD
40,000.
22. In this context, the Single Judge noted that neither party contested the non-payment of the
amounts claimed by the Claimant. Therefore, he acknowledged that his task was to
determine, based on the arguments presented by the parties, whether the Respondent
had a valid justification for not having complied with its financial obligations.
23. Then, the Single Judge took note of the Respondent’s argumentation mentioning that the
Player concluded a new contract with a third club and that his new salary should be
deducted from the amount due as per art. 17 of the Regulations otherwise, it would
constitute unjust enrichment.
24. In this regard, the Single Judge asserted that although, the Respondent referred to art. 17
of the Regulations, both parties concluded a termination agreement, in which the parties
determined the amount to be paid by the Club for the early termination of the contract,
and therefore, the Single Judge concluded that this was a case for outstanding
remuneration and not compensation for breach of contract.
25. Equally, the Single Judge considered that the termination agreement was valid as no
evidence affecting its validity was raised. Moreover, the Single Judge noted that amount of
compensation for the early termination stipulated in the termination agreement was freely
agreed by the parties and corresponded to the value of the contract. Additionally, the
termination agreement did not provide any reduction in case the Player would find a new
club after the termination. Therefore, the Single Judge rejected the Respondent’s request
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REF. FPSD-14260
of a deduction of the amount the Player earned in his new contract, and concluded that
the Claimant is entitled to USD 40,000.
26. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant USD 40,000.
27. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from 2 March 2024 until the date of effective
payment.
ii. Compliance with monetary decisions
28. Finally, taking into account the applicable Regulations, the Single Judge 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.
29. In this regard, the Single Judge 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.
30. Therefore, bearing in mind the above, the Single Judge 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.
31. 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.
32. The Single Judge 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
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REF. FPSD-14260
33. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
34. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
35. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-14260
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mahdi Faisal Ebrahim Alhumaidan, is partially accepted.
2.
The Respondent, Salmiya SC, must pay to the Claimant USD 40,000 as outstanding
remuneration plus 5% interest p.a. as from 2 March 2024 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.
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
pg. 10
REF. FPSD-14260
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
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