Labour Disputes
Texto da decisão
REF FPSD-5861
Decision of the
Dispute Resolution Chamber
passed on 13 October 2022
regarding an employment-related dispute concerning the player
Daniel Suárez García-Osorio
BY:
Frans de Weger (the Netherlands), Chairperson
Laurel Vaurasi (Fiji), member
Stefano Sartori (Italy), member
CLAIMANT:
Daniel Suárez García-Osorio, Spain
Represented by 14 Sports Law
RESPONDENT:
Abha, Saudi Arabia
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I. Facts of the case
1.
On 15 August 2021, the Spanish player Daniel Suárez García-Osorio (hereinafter the
Claimant or the Player) and the Saudi club Abha (hereinafter the Respondent or the Club)
concluded employment agreement (hereinafter the Employment Agreement), valid from
the date of its signature until 14 July 2022.
2.
In Clause 5 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the Parties) agreed upon, inter alia, the following financial terms:
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3.
USD 50,000 as a monthly salary, payable “by the last day of each month”;
USD 200,000 as a sign-on fee, payable on “15.08.2021 or when signing the contract”;
“win-match-bonus” payable in Saudi Rial (SAR) “according to the club policy” “within
30 days of the satisfaction”
USD 2,000 as a monthly allowance for accommodation;
Two round-trip tickets each season for the Player and his wife.
On 17 November 2021, the Claimant sent an email to the Respondent with the following
content, requesting the outstanding amounts:
“The following amounts have been received instead of the USD 50.000 salary and the
USD 200.000 signing fee:
- Signing fee received SAR 713.745 (EUR 156.716) received 8 September
- August 2021 salary SAR 93.912,50 (EUR 20.601) received 8 September
- September 2021 salary SAR 187.825 (USD 48.834) received 11 October
- October 2021 salary 187.825 ((USD 48.150), received 22 November”.
4.
Allegedly, also the following salaries were not paid in their entirety:
“- November 2021 salary USD 48.673,37
December 2021 salary USD 49.833,88”.
5.
Allegedly, in mid-January 2022, the Respondent “started to indicate that it did not want to
pursue its employment relationship with the Player anymore”.
6.
In this respect, allegedly on 26 January 2022, “a verbal proposal for the mutual termination
of the Employment Agreement, upon the payment of very reduced amounts,” was proposed
by the Respondent. The Claimant did not accept such agreement.
7.
On 27 January 2022, the Respondent served a termination letter to the Claimant.
8.
The termination letter read, inter alia, as follows:
“You have been terminated for the following reason(s):
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•
Despite being putted in the list of the transfer, your outright refuse to cooperate
with the club to find a mutual agreement in breach of the duty of good faith and
fair dealing;
•
For violating basic standards of honesty by wasting the time of the club for more
than two weeks during the first 15 days of January 2022 due to your unjustified
refusal of the free loan of offer of Atromitos Athen dated 31 December 2021 to hire
you on a free loan basis (i.e. 70,000 EURO for the period from 03/01/2022 until
20/05/2022 , despite the guarantee of Abha fc to compensate you for the difference
of your basic monthly salary under the terms of the contract without any loss until
the end of June 2022.
•
intentional dishonest act by misleading the club during the last 10 Days until the
26th of January 2022, by entering into a false negotiation to primarily accept the
agreed amount of compensation in sum of USD 240,000 for the premature
termination of the Employment Contract until the 26/01/2022 with no intention of
implementing the agreement reached. To the contrary, we were astonished by your
final decision of yesterday 26 January 2022 to ask the club for your full earning
until the last day of the contract (i.e. a copy of the final draft of the mutual
termination dated 25 January 2022 as it was negotiated by your agent and you is
enclosed herewith for your information).
This decision is not reversible.
You will receive your basic salary at the end of each month with the right of the club to setoff a sum of USD 130,000 (one hundred thirty thousand USD ) corresponding to free loan
proposal of Atromitos Athen offer which refused by you in bad faith (i.e EUR 70,000 EUR )
plus 50,000 USD the equivalent January 2022 salary for your Bad-Faith to use malicious
Tactic to cause damage and economic loss for the last whole period of January 2022
according to Article 337c (2) SCO which states as follow:
“The duty of mitigation is related to the rule that the Employee must permit a set-off against
the amount of compensation for what he saved because of the termination of the
Employment Relationship, or what he earned from other work, or what he has intentionally
failed to earn”.
As a consequence, the club will be liable to compensate you with a total sum of
USD 195,000 (one hundred ninety five thousand US Dollars) for the premature
termination of the contract (i.e; 325,000 for the period from 01/01/2022 until 14/07/2022
minus 130,000 USD in term of duty to mitigate loss).”
9.
On 30 January 2022, the Respondent sent another notice to the Claimant, reiterating its
position regarding the termination of the Employment Agreement.
10. Equally, the Saudi Football Federation was informed regarding the termination of the
Employment Agreement.
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11. On 1 February 2022, the Respondent announced its decision to terminate the
Employment Agreement on its Twitter account.
12. Allegedly, on 2 February 2022, the Claimant’s visa expired.
13. On 7 February 2022, the Claimant sent a letter to the Respondent, highlighting that the
Employment Agreement was terminated without just cause and requested the amount
of USD 647,333.33 as compensation.
14. On 10 February 2022, the Respondent contested the contents of the letter of the
Claimant, arguing that it did not terminate the Employment Agreement and that it would
proceed with the payment of the monthly salaries agreed under the Employment
Agreement until 14 July 2022.
15. On 11 February 2022, the Claimant sent a letter to the Respondent, attaching the previous
termination notices sent by the latter, and insisting on its previous position.
16. In its reply on 15 February 2022, the Respondent asserted, inter alia, that it “provided that
documents to serve for his new club as a proof of end of the player’s last contract in order to
secure his possible registration out of contract prior or after to the end of a registration period
fixed by the new association pursuant to Article 6.1 of Annex 3 of the FIFA Regulations on the
Status and Transfer of Players, edition June 2021 (RSTP) to avoid the “validation exception”
When the “Request date of his ITC is outside of the new association's defined registration
periods. In accordance with the general principle of fairness, the player has to stop the
deliberate failure to search for a new club, and his unreasonable refusal to sign a new
employment contract in the absence of any valid reason to do so. (…)
Finaly, and for more clarification we confirm that the club owes the player no money,
furthermore, please feel free that club will continue to pay the player's salary in accordance
with the principle of pacta sunt servanda.”
17. On 1 March 2022, the Respondent send an email to the Claimant, informing that allegedly,
a payment of February 2022 salary was made.
18. In a letter to the Respondent dated 3 March 2022, the Claimant highlighted that the
Employment Agreement remains terminated and that “the partial payment of the Player’s
January and February 2022 salaries, the receipt of such payments by Mr. Suárez cannot be
interpreted as an acceptance from the Player of the Club’s absurd and nonsensical
contentions that the Employment Agreement remains valid and binding upon the Parties.”
19. On 12 April 2022, the Respondent send an email to the Claimant, informing that allegedly,
a payment of March 2022 salary was made.
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20. In a letter to the Respondent dated 13 April 2022, the Claimant reiterated that the
Employment Agreement is terminated.
21. In July 2022, the Claimant signed a new employment agreement (hereinafter the New
Employment Agreement) with the Greek club Atromitos FC, coming to force on 20 July 2022
until 30 June 2023.
II. Proceedings before FIFA
22. On 27 April 2022, the Claimant filed the claim at hand before FIFA.
23. The Respondent failed to reply to the claim within the stipulated deadline.
24. A brief summary of the position of the Parties is detailed in continuation.
a. Position of the Claimant
25. In his claim, the Claimant requested the following amounts with an interest of 5% p.a. as
from the respective due dates until the date of the effective payment:
“Determine that the Respondent must pay the Claimant a total amount of U$ 528.851,00
(Five Hundred and Twenty-Eight Thousand Eight Hundred and Fifty- One United States
Dollars), which corresponds on the one hand, to the outstanding remuneration under the
Employment Agreement, plus the compensation for the unilateral termination of the
Employment Agreement without just cause, plus the Additional Compensation due to
egregious circumstances of the present case; or, in the alternative
Determine that the Respondent must pay the Claimant a total amount of U$ 228.851,00
(Two Hundred and Twenty-Eight Thousand Eight Hundred and Fifty-One United States
Dollars), which corresponds on the one hand, to the outstanding remuneration under the
Employment Agreement, plus the compensation for the unilateral termination of the
Employment Agreement without just cause.”
26. The Claimant argued that the Respondent terminated the Employment Agreement on
27 January 2022 without just cause and shall pay a compensation in accordance with art.
17 of the Regulations.
27. As to the calculation, the Claimant provided for the following break-down:
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“U$ 38.375,41 as outstanding remuneration under the Employment Agreement
signed between the Parties on 15 August 2021; plus
A total of U$ 490.475,63, as compensation for the unilateral termination of the
Employment Agreement without just cause, plus the Additional Compensation due
to egregious circumstances of the present case, or, in the alternative; plus
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−
U$ 190.475,63, as compensation for the unilateral termination of the Employment
Agreement without just cause.”
b. Position of the Respondent
28. The Respondent failed to reply to the claim within the stipulated deadline, however, it
provided for various payment slips.
c. Final comments of the Claimant
29. The Claimant was requested to comment on the payments allegedly made by the
Respondent and he provided the following break-down.
“Outstanding amounts”: total amount of U$ 28.375,41
30. The Claimant asserted that “by the date of termination of the Employment Agreement without
just cause by the Club, i.e., 27 January 2022, the total amount of U$ 9.734,75” remained
outstanding.
31. Furthermore, the Claimant was of the opinion that the Respondent failed to perform the
payment of two winning bonuses in the amount of SAR 35,000/each (i.e. USD 9,320.33 x
2).
32. Finally, the Claimant acknowledged to have ”received a cash payment in the amount of U$
10.000,00 (Ten Thousand Dollars) as part of the payment of the signing fee, which shall be
deducted from the final amount to be received by the Claimant as outstanding remuneration.“
“Compensation”: total amount of U$ 442.191.87
33. The Claimant further highlighted that he “duly disclosed to FIFA the payments performed by
the Club to the Player after the termination of the Employment Agreement without just cause,
as can be seen from paragraphs 101 and 102 of the Claimant’s Statement of Claim, i.e., the
partial payment of the Player’s January, February and March 2022 salaries.”
34. In addition, the Claimant acknowledged “partial payment of the Player’s April 2022 salary,
in the amount of U$ 48.283,76”, “one day after the Player had already filed his Statement of
Claim before FIFA.”
35. In view of the above, the Claimant asserts that this amount “shall indeed be deducted from
the total amount of U$ 190.475,63” claimed by the Player as compensation for the
termination of the Employment Agreement without just cause by the Club.
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36. In this respect, the Claimant asserted that he is “entitled to receive a total amount of
U$ 142.191,87.”
37. Finally, the Claimant reiterated that he shall be entitled to U$ 300.000,00 as a
compensation for the egregious circumstances of the present dispute.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
38. 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 27 April 2022 and submitted
for decision on 13 October 2022. Taking into account the wording of art. 34 of the
June 2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
39. 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 (July 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 Spanish player
and a Saudi club.
40. Finally, 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 (July 2022 edition), and considering
that the present claim was lodged on 27 April 2022, the February 2022 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Admissibility of the late reply
41. At this point, the Chamber recalled that the Respondent failed to submit its reply to FIFA
general secretariat within the time limit granted. In this respect, the DRC pointed to art. 21
par. 1 of the Procedural Rules and concluded the said reply cannot be considered in the
matter at hand.
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c. Burden of proof
42. 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).
d. Merits of the dispute
43. 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
44. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the claim concerns a termination of a contract.
45. In this context, the Chamber acknowledged that it its task was to determine if the
termination by the Respondent, which occurred on 27 January 2022, was with just cause.
46. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a
contract without prior warning. In other words, only when there are objective criteria
which do not reasonably permit to expect the continuation of the employment
relationship between the Parties, a contract may be terminated prematurely. Hence, if
there are more lenient measures which can be taken in order for an employer to assure
the employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment
contract can only be an ultima ratio.
47. With the above in mind and after having carefully analysed the evidence on file, the DRC
concluded that no such incidents occurred. Furthermore, the Chamber pointed that the
allegations contained in the termination letter of 27 January 2022 cannot be deemed as a
substantial breach of an employment contract, capable of triggering the consequences of
an unlawful termination.
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48. For the sake of completeness, the Chamber wished to remark that fact that the
Respondent continued to make certain payments to the Claimant does not change that
the termination occurred. In particular, because the Respondent’s correspondence as
from 27 January 2022 only confirms that there is no longer an employment relationship
between the Parties. However, the Chamber wish to remark that the respective payments
will, of course, be considered for the calculation of outstanding amounts .
49. In view of the above, the Chamber concluded that the Respondent did not have just cause
to terminate the employment relationship and shall bear the financial consequences
thereof.
50. In this respect, the DRC turned its attention the outstanding amounts and noted that the
Claimant recognized receiving the amount of USD 415,265.25.
51. As to the claimed bonuses, the Chamber pointed to Clause 5 of the Employment
Agreement, in which the Parties contractually stipulated that the Player will be entitled to
performance bonuses. Nonetheless, the DRC observed that the provision remained
unclear as to the exact remuneration and, furthermore, the Player failed to submit “the
club policy”, which could provide us with the respective remuneration or any other
evidence in this respect. In view of the above, the Chamber decided to reject the claim for
bonuses.
ii. Consequences
52. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
53. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player amounted to USD 9,734.75 (value
of the contract between August 2021 until December 2021 MINUS the amount
acknowledged as received by the Claimant, i.e. USD 425,000 MINUS USD 415,265.25)
54. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under the contract at the moment of the termination,
USD 9,734.75.
55. 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 27 April 2022 until the date of
effective payment.
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56. 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.
57. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of
which the Parties had beforehand agreed upon an amount of compensation payable by
the contractual Parties in the event of breach of contract. In this regard, the Chamber
established that Clause 12 of the Employment Agreement refers to the application of
art. 17 of the Regulations.
58. 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
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.
59. 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 contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 336,000 (i.e. USD 325,000 PLUS USD 11,000) serves as
the basis for the determination of the amount of compensation for breach of contract.
60. 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.
61. In this respect, the Chamber noted that the Player remained unemployed for the relevant
period, i.e. since the unilateral termination until the original expiry date of the contract.
62. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the Player did not sign any new contract following the termination of his previous
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contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
63. In this respect, the Chamber decided to award the Player compensation for breach of
contract in the amount of USD 336,000, as the residual value of the contract.
64. 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
compensation at the rate of 5% p.a. as of 27 April 2022 until the date of effective payment.
iii. Compliance with monetary decisions
65. 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.
66. 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.
67. 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.
68. 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.
69. 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.
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e. Costs
70. 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.
71. 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.
72. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the Parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Daniel Suárez García-Osorio, is partially accepted.
2.
The Respondent, Abha, has to pay to the Claimant, the following amount(s):
- USD 9,734.75 as outstanding remuneration plus 5% interest p.a. as from 27 April 2022
until the date of effective payment;
- USD 142,191.87 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 27 April 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban
shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
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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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
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