Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 23 April 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Jos é Luis Andrade (Portugal), member
S tijn Boey kens (Belgium ), member
on the claim presented by the player,
Luis Antonio Jim enez Garces , Chile,
represented by Mr Salvatore Civale
as Claimant
against the club,
Al Ittihad, Saudi Arabia,
represented by Mr Jan Kleiner
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 10 July 2019, the player, Luis Antonio Jimenez Garces (hereinafter: Claimant), and
the club, Al Ittihad (hereinafter: Respondent), signed an employment contract
(hereinafter: contract), valid as from 1 July 2019 until 30 June 2020.
2.
According to Item 5 of the contract, the Respondent undertook to pay the Claimant,
inter alia, a total net salary of USD 1,500,000 for season 2019/2020, payable in 12
instalments of USD 125,000 each.
3.
On 28 September 2019, the parties signed a termination agreement, as per which the
Respondent undertook to pay the Claimant the amount of USD 550,000 by no later
than 31 October 2019. Furthermore, as per the termination agreement, in case of nonpayment, the Claimant had the right to claim “payment of the full remaining amount
under his existing employment contract” before “the FIFA Dispute Resolution
Chamber”.
4.
On 5 November 2019, the Claimant informed the Respondent in writing that it had
failed to pay him the amount of USD 550,000 as stipulated in the termination
agreement. Consequently, the Claimant now requested payment of the amount of USD
1,375,000, corresponding to the residual value of the employment contract, granting
the Respondent a 5-day deadline to remedy the default.
5.
On 12 November 2019, the Respondent ordered the payment to the Claimant of USD
550,000, as per the termination agreement.
6.
On 15 November 2019, the Claimant acknowledged that the amount of USD 550,000
was deposited in his bank account.
7.
On 6 December 2019, the Claimant lodged a claim against the Respondent for
outstanding remuneration in front of FIFA, requesting the payment of the amount of
USD 825,000 plus 5% interest p.a. as from 10 November 2019, corresponding to the
total remuneration for season 2019/2020 (USD 1,500,000) minus the salary of July 2019
which he received late (USD 125,000) and minus the amount paid in accordance with
the termination agreement (USD 550,000).
8.
In his claim, the Claimant firstly outlined that he received his first salary (for July 2019
in the amount of USD 125,000) with a delay of almost 3 months.
9.
In continuation, the Claimant again acknowledged that he received the amount of USD
550,000 from the Respondent, but stressed that this payment was made after the
established deadline of 31 October 2019.
Player Luis Antonio Jimenez Garces, Chile / Club Ittihad FC, Saudi Arabia
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10.
Due to the Respondent’s late payment, and referring to the termination agreement,
the Claimant understood that he was entitled to the value of the employment contract
minus the amounts already received, i.e. USD 825,000.
11.
In its reply, the Respondent rejected the Claimant’s claim, arguing that the Claimant
failed to mention several “key facts”.
12.
In this respect, the Respondent firstly referred to a WhatsApp conversation in which
the Claimant held the following: “I will wait until November 15, 3 more days, our
agreement expired on October 31 mean 2 weeks ago…”.
13.
Subsequently, according to the Respondent, after having made the payment on 15
November 2019, it informed the Claimant and his legal representative that the
payment was made. In this light, as per the Respondent, in reply to the payment, the
Claimant informed the Respondent via WhatsApp of the following: “Thank you so
much [...] the only thing missing is you to pay the 5000 euros fee the lawyer is asking
for the cause and to finish it”.
14.
According to the Respondent, it “quickly agreed to make such a contribution in good
faith”. However, as per the Respondent, no invoice regarding the EUR 5,000 was ever
issued by the Claimant.
15.
Having said this, the Respondent recalled that by means of another WhatsApp
message, the Claimant held that his lawyer is “asking 20k he send everything to FIFA
this morning”. Thus, and with regard to this new petition by the Claimant, the
Respondent argued that such a request is “unacceptable”.
16.
Given all of the above, and in particular given the fact that the Respondent paid the
Claimant EUR 550,000 by 15 November 2019 as agreed by the Claimant, the Respondent
concluded that the Claimant’s claim is to be rejected in its entirety.
17.
On 1 January 2020 the Claimant signed a new employment contract with the Chilean
club, Deportivo Palestino, valid as from 1 January 2020 until the end of the 2021 season
(31 December 2021) according to which he was entitled to a monthly salary of CLP
(Chilean Pesos) 4,000,000.
Player Luis Antonio Jimenez Garces, Chile / Club Ittihad FC, Saudi Arabia
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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 submitted to FIFA on 6 December
2019. Taking into account the wording of art. 21 of the 2019 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 members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players 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 Chilean player
and a Saudi Arabian club.
3.
In continuation, 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 and considering
that the present claim was lodged on 6 December 2019, the October 2019 edition of
the said regulations (hereinafter: Regulations) is applicable to the matter at hand as to
the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect, the
Chamber started by acknowledging all the above-mentioned facts and arguments as
well as 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.
5.
In this respect, the Chamber firstly recalled that the Claimant and the Respondent
signed an employment contract valid as from 1 July 2019 until 30 June 2020. In
continuation, the DRC took into account that on 28 September 2019, the parties signed
a termination agreement, as per which the Respondent undertook to pay the Claimant
the amount of USD 550,000 by no later than 31 October 2019.
6.
In this regard, the Chamber further noted that, as per the termination agreement, in
case of non-payment, the Claimant had the right to claim “payment of the full
remaining amount under his existing employment contract” before “the FIFA Dispute
Resolution Chamber”.
7.
In continuation, the DRC recalled that the Claimant lodged a claim before FIFA
requesting the payment of the amount of USD 825,000, corresponding to the total
remuneration for season 2019/2020 (USD 1,500,000) minus the salary of July 2019 which
Player Luis Antonio Jimenez Garces, Chile / Club Ittihad FC, Saudi Arabia
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he received late (USD 125,000) and minus the amount paid in accordance with the
termination agreement (USD 550,000).
8.
In light of the above, the Chamber established that the primary issue at stake is
determining as to whether the Claimant was in a position to claim “payment of the full
remaining amount under his existing employment contract” as stipulated in the
termination agreement, given that the Respondent had failed to pay him the amount
of USD 550,000 by 31 October 2019.
9.
In this context, the DRC took into account the Claimant’s position, who inter alia argued
that due to the Respondent’s late payment, he was entitled to the value of the
employment contract minus the amounts already received, i.e. USD 825,000.
10.
Similarly, the Chamber recalled that, as per the Respondent, the Claimant had
subsequently agreed on a deadline of 15 November 2019 for the Respondent to pay
the amount of USD 550,000.
11.
Having recalled the above, the Chamber firstly highlighted that it remained undisputed
that the Claimant received the amount of USD 550,000 from the Respondent by 15
November 2019.
12.
In continuation, the DRC turned its attention to the evidence provided by the
Respondent, and established that the Claimant had indeed granted the Respondent an
extension to pay the amounts as stipulated in the termination agreement until 15
November 2019.
13.
Consequently, the Chamber determined that the Respondent had fulfilled its
obligation to pay to the Claimant the amount of USD 550,000 within the deadline
provided by the Claimant, i.e. 15 November 2019.
14.
As a result, the DRC concluded that there was no more outstanding remuneration due
to the Claimant, and that the Claimant was not in a position to request “payment of
the full remaining amount under his existing employment contract” as stipulated in
the termination agreement.
15.
Therefore, the Chamber decided to reject the Claimant’s claim for outstanding
remuneration in the amount of USD 825,000.
16.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that the claim lodged by the Claimant is rejected in its entirety.
*****
Player Luis Antonio Jimenez Garces, Chile / Club Ittihad FC, Saudi Arabia
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Decision of the Dis pute Res olution Cham ber
The claim of the Claimant, Luis Antonio Jimenez Garces, is rejected.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the
DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS
directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS. Within another 10
days following the expiry of the time limit for filing the statement of appeal, the appellant
shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Luis Antonio Jimenez Garces, Chile / Club Ittihad FC, Saudi Arabia
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