Labour Disputes
Texto da decisão
REF FPSD-8332
Decision of the
Dispute Resolution Chamber
passed on 8 March 2023
regarding an employment-related dispute concerning the player Lewis Grabban
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
DOS SANTOS MEGALE André (Brazil), member
TIMERA Khadija (Senegal), member
CLAIMANT:
Lewis Grabban, United Kingdom
Represented by Ludovic Delechat
RESPONDENT:
Al Ahli, Saudi Arabia
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I. Facts of the case
1.
On 26 August 2022, the British player Lewis Grabban (hereinafter: the Claimant or the player) and
the Saudi club Al Ahli (hereinafter: the Respondent or the club) concluded an employment contract
(hereinafter: the Contract) valid until 25 June 2023.
2.
Art. 5.1 of the Contract reads as follows:
“The Club shall pay the following fixed monthly remuneration to the Player (net of any taxes, bank fees
and foreign exchange charges):
Monthly Salary USD 100.000
The Club shall pay to the Player each monthly salary payment by the last day of each month for a total
of one million dollars net”.
3.
According to art. 5.2 of the Contract, the Claimant was entitled to a signing on fee in the amount of
USD 200,000 net to be paid by no later than 1 September 2022.
4.
According to art. 5.3 of the Contract, the Claimant was entitled to the conditional amount of
USD 100,000 net “if the Club promoted to professional league MBS after 2022/2023 season”.
5.
Art. 5.4 of the Contract reads as follows:
“The Club shall pay all monthly, fixed and conditional remuneration to the Player's designated bank
account. The details of which are as follows: [Bank details of the Claimant].”
6.
Art. 5.6 of the Contract reads as follows:
“The club shall have the option to extend the expiry date of this contract until 30 May 2024. If the club
wants to exercise this option, the club shall notify the player in written to the email address mentioned
in this contract before 01/04/2023. If the club does not notify the player of its wish to active the option
before 01/04/2023, this option is deemed null and void.
In case the club exercise the aforementioned option, the total annual remuneration for the whole period
of the renewed contract shall be (USD 1.400.000) one million and one four hundred thousand dollars,
to be paid as follows: (USD 200.000) advance payment and (USD 1.200.000) on monthly salaries) - being
applicable all the article of this contract.”
7.
Art. 7.1 of the Contract reads as follows:
The Player shall:
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1. act in a spirit of good faith, honesty and integrity towards the Club at all times;
8.
On 2 November 2022, the Claimant sent a default notice to the Respondent requesting the amount
of USD 400,000 giving the latter a deadline of 15 days to remedy the default, to no avail.
9.
On 18 November 2022, the Claimant terminated the Contract, adducing just cause.
10. On 23 January 2023, the Claimant informed that he remained unemployed.
II. Proceedings before FIFA
11. On 23 November 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
12. According to the Claimant, the Respondent did not comply with its contractual obligations since
the beginning of the Contract and, at the date of termination, the Respondent owed him the
amount of USD 400,000 net, consisting of the signing-on fee (USD 200,000 net) as well as two
monthly salaries of USD 100,000 net.
13. The Claimant states that the genuine intention of the parties when signing the Contract was always
to have a two years’ contract until June 2024. However, the Respondent “with its bad action
prevented him from being able to renew his contract, as it was planned when signing the employment
contract”. Thus, the Claimant sustains that it is entitled to the remuneration for the option year in
the amount of USD 1,400,000.
14. The Claimant requests as well the bonus payment of USD 100,000 net that is due if the Club
promoted to professional league MBS after 2022/2023 season. The Claimant deems that “it cannot
be excluded with certainty that had the Player’s employment contract not been unlawfully breached by
the Club, he would have been able to get promoted with the Club. Alternatively and in the unlikely event
that the full amount would not be due to the Player, quod non, we respectfully request the payment of
the amount pro rata temporis”.
15. The Claimant argues that it is entitled to compensation corresponding to the remaining contractual
value of USD 2,200,000 net calculated as follows:
- 8 instalments of USD 100,000 net for the remaining 2022/2023 football season;
- the total amount of USD 1,400,000 net for the 2023/24 football season.
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16. The Claimant filed the following requests for relief:
“1. The claim of the Claimant shall be accepted in its entirety.
2. The Defendant shall be obliged to pay to the Claimant the amount of USD 400,000 net as outstanding
salaries, plus interest at a rate of 5% per year over said amount, as from the relevant due dates until the
effective date of payment.
3. The Defendant shall be obliged to pay to the Claimant the amount of USD 2,200,000 net as
compensation for breach of the employment contract, plus 5% interest per annum over said amount as
of the date of termination of the employment contract, i.e. on 18 November 2022.
4. The Defendant shall be obliged to pay to the Claimant the amount of USD 100,000 net as bonuses,
plus interest at a rate of 5% per year over said amount, as from the relevant due date until the effective
date of payment.
5. The Defendant shall be obliged to pay to the Claimant the amount of USD 600,000 net in accordance
with article 17 par. 1 lit. ii) FIFA Regulations on the Status and Transfer (hereinafter: RSTP).
6. Art. 24bis of the FIFA RSTP shall be applied in the present matter. Consequently, a ban from registering
any new players, either nationally or internationally, for two entire and consecutive registration periods
shall be applied against the club Defendant.”
b. Position of the Respondent
17. According to the Respondent, it “informed the Claimant about the internal complication in respect of
making the payments in foreign currency onto the bank account in a foreign country, United Arab
Emirates in this case. The Respondent requested the Claimant to open the bank account in one of the
banks of the Kingdom of Saudi Arabia. The Claimant, however, ignored the request of the Respondent”.
18. The Respondent submits the Claimant terminated the Contract without just cause, in violation of
Article 7.1 of the Contract, and therefore no compensation is due.
19. Alternatively, the Respondent submits that any compensation awarded “shall not be higher than the
remuneration for the original period of the Contract, which is from 26 August 2022 until 25 June 2023
and equals to USD 1,200,000”.
20. The Respondent states that in “accordance with Article 5.6 of the Contract, the condition for the
extension of the Contract for 2023/2024 season is that the Respondent “notifies the Claimant in written
to the email address before 01/04/2023”. No such notification occurred in this case, the condition for
the extension of the Contract was not fulfilled.”
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21. Lastly, the Respondent deems that the requested bonus of USD 100,000 “is not due to the Claimant
because:
a) the said condition was not fulfilled, and
b) the Claimant terminated the Contract long before the end of 2022/2023 season.”
22. The Respondent filed the following requests for relief:
“(1) To reject the Claim of the Claimant in full;
(2) To establish that no compensation shall be payable by the Respondent to the Claimant;
(3) In the event the above points (1) and/or (2) are not accepted, the amount of compensation payable
by the Respondent to the Claimant shall not exceed USD 1,200,000;
(4) Under all circumstances to establish, that the Claimant is not entitled to the remuneration set out in
the Contract with respect to 2023/2024 football season;
(5) Under all circumstances to establish, that no bonus payments shall be due by the Respondent to the
Claimant;
(6) Under all circumstances to establish, that no additional compensation shall be payable by the
Respondent to the Claimant;
(7) If any costs of the proceedings shall be due, to order the Claimant to cover such costs in full;”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 23 November 2022 and submitted for decision on
8 March 2023. Taking into account the wording of art. 34 of the October 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.
24. 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 British player and a Saudi club.
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25. 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 23 November 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
26. 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
27. 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 abovementioned 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
28. 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
contract by the Claimant, based on the alleged non-payment of certain financial obligations by the
Respondent as per the contract, in accordance with art. 14bis of the Regulations.
29. In this context, the Chamber acknowledged that their 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.
30. 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).
31. The Chamber recalled that the Claimant claims not having received his remuneration from the
start of the Contract corresponding to two monthly salaries and a signing on fee. Furthermore, the
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Chamber noted that the Claimant has provided written evidence of having put the Respondent in
default on 2 November 2022, i.e. at least 15 days before unilaterally terminating the contract on
18 November 2022.
32. The Chamber took note that in the case at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the Respondent acknowledged that the amounts had not been paid it deems that its
position was justified because it allegedly requested the Claimant to open a bank account in Saudi
Arabia and the Claimant ignored such request.
33. In this regard, the DRC referred to art. 13. par. 5 of the Procedural Rules, according to which
“A party that asserts a fact has the burden of proving it” and it underlined the Respondent had not
discharged its burden of proof in respect to this argument. Furthermore, the Chamber observed
that the bank details of the Claimant had already been provided in the Contract.
34. Thus, the Chamber confirmed that the Respondent had not provided any valid reason to withhold
the payment of the Claimant-s remuneration and hence concluded that the Claimant had a just
cause to unilaterally terminate the contract, based on art. 14bis of the Regulations.
ii. Consequences
35. 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.
36. The Chamber observed that the outstanding remuneration at the time of termination, coupled
with the specific requests for relief of the player, are equivalent to five salaries under the contract,
consisting of three-monthly salaries of USD 100,000 net (September to November 2022) and a
singing on fee of USD 200,000 net, amounting to USD 500,000.
37. 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, i.e. USD 500,000 net.
38. 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 the respective due dates until the date of effective payment.
39. 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
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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.
40. 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 no such
compensation clause was included in the employment contract at the basis of the matter at stake.
41. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
42. 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.
43. In this regard, the Chamber referred to the arguments of the Claimant regarding the option year
contained in art. 5.6 of the Contract and the promotion bonus agreed in art. 5.3 of the Contract.
44. In this respect, the Chamber underlined the option agreed in art. 5.6 of the Contract granted the
Respondent the possibility of extending the Contract for a further year at its exclusive discretion.
Consequently, the Chamber confirmed that by choosing to terminate the Contract, the Claimant
prevented the option from being triggered. The Chamber reiterated that the same rationale applies
for the conditional payment in the event the Respondent was promoted at the end of the season.
45. Therefore, the Chamber confirmed that based on the principle pacta sunt servanda, these
arguments of the Claimant had to be rejected.
46. Consequently, the Chamber concluded that the amount of USD 700,000 (i.e. the residual value
from December 2022 until June 2023) serves as the basis for the determination of the amount of
compensation for breach of contract.
47. 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.
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48. The Chamber noted that the Claimant remained unemployed and was therefore unable to mitigate
his damages.
49. 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 USD 700,000 to the
player, which was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
50. 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 23 November 2022 until the date of effective payment.
iii. Sporting sanctions
51. In continuation, the Chamber focused on the further consequences of the breach of contract in
question and, in this respect, it addressed the question of sporting sanctions against the club in
accordance with art. 17 par. 4 of the Regulations. The cited provision stipulates that, in addition to
the obligation to pay compensation, sporting sanctions shall be imposed on any club found to be
in breach of contract during the protected period.
52. In this respect, the Chamber referred to item 7 of the “Definitions” section of the Regulations, which
stipulates inter alia that the protected period shall last “for three entire seasons or three years,
whichever comes first, following the entry into force of a contract, where such contract is concluded
prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first,
following the entry into force of a contract, where such contract is concluded after the 28th birthday of
the professional”.
53. In this respect, the Chamber took note that the player was born on 12 January 1988 and the
relevant contract with the club was concluded on 26 August 2022. Furthermore, the Chamber
noted that the Claimant terminated the Contract with just cause on 18 November 2022. The breach
of contract by the club had therefore occurred within the protected period.
54. Furthermore, the Chamber noted that the club had already been held liable of breaching other
players’ contracts without just cause in several recent occasions, in particular in cases:
-
FPSD-3277, DRC decision of 21 November 2021
-
FPSD-5045, DRC decision of 21 July 2022
-
FPSD-7878, DRC decision of 1 February 2023
55. Consequently, the Chamber decided that, by virtue of art. 17 par. 4 of the Regulations, the club
shall be sanctioned with a ban from registering any new players, either nationally or
internationally, for two entire and consecutive registration periods.
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iv. Compliance with monetary decisions
56.
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.
57.
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.
58.
Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par. 3 of
the Regulations, the aforementioned consequences may be excluded where the pertinent FIFA
deciding body has already imposed on the same party a sporting sanction on the basis of article
12bis, 17 or 18quater of the Regulations.
59.
In this respect, considering that art. 17 par. 4 of the Regulations applies in the matter, the
Chamber established that art. 24 par. 2 of the Regulations shall not apply, insofar as in case the
Respondent fails to comply with the decision at hand, the application of a further ban from
registering any new players on top of the one already being served by the Respondent would be
moot and against the spirit of the Regulations, in particularly the enforcement mechanism
established under art. 24 of the Regulations.
60.
In view of the above, the DRC decided that if the aforementioned sum plus interest is not paid
within 45 days of notification of this decision, the present matter shall be submitted, upon request
of the Claimant, to the FIFA Disciplinary Committee for its consideration and formal decision.
61.
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.
d. Costs
62. 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.
63. 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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64. 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, Lewis Grabban, is partially accepted.
2.
The Respondent, Al Ahli, has to pay to the Claimant, the following amounts:
-
USD 500,000 net as outstanding remuneration plus 5% interest p.a. as follows:
On USD 200,000 net from 2 September 2022 until the date of effective payment.
On USD 100,000 net from 1 October 2022 until the date of effective payment.
On USD 100,000 net from 1 November 2022 until the date of effective payment.
On USD 100,000 net from 18 November 2022 until the date of effective payment.
-
USD 700,000 net as compensation for breach of contract without just cause plus 5% interest as
from 23 November 2022.
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.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
6.
If full payment (including all applicable interest) is not made within 45 days of notification of this
decision, the present matter shall be submitted, upon request of the Claimant, to the FIFA
Disciplinary Committee.
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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