Labour Disputes
Texto da decisão
REF FPSD-2775
Decision of the
Dispute Resolution Chamber
passed on 16 December 2021
regarding an employment-related dispute concerning the player Mohammed
Rharsalla Kadfi
BY:
Frans de Weger (Netherlands), Chairperson
Angela Collins (Australia), member
Daan de Jong (Netherlands), member
CLAIMANT / COUNTER-RESPONDENT:
Mohammed Rharsalla Kadfi, Spain
Represented by Kumar Parmar
RESPONDENT / COUNTER-CLAIMANT:
SK Slovan Bratislava, Slovakia
Represented by Georgi Gradev
INTERVENING PARTY:
Al Hazem FC, Saudi Arabia
Represented by Ali Abbes and Mohamed Rokbani
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I.
Facts of the case
1.
On 19 January 2018, the Spanish player Mohammed Rharsalla Kadfi (hereinafter: the
Claimant/Counter-Respondent or player) and the Slovakian club SK Slovan Bratislava
(hereinafter: the Respondent/Counter-Claimant or club) signed an employment contract
(hereinafter: the first contract), valid from 1 February 2018 until 31 May 2022.
2.
The parties agreed to a basic salary according to annex 1 (remuneration agreement) of the
first contract which provides for “a basic monthly reward upon both-sides agreement of EUR
17.000 net with effect from 01.02.2018 until 31.05.2022”.
3.
On 9 August 2018, the parties signed a new employment contract (hereinafter: the second
contract), valid from 9 August 2018 until 30 May 2023.
4.
Clause 2 of annex 1 to the second contract states that the “basic monthly salary is EUR
26.600 gross with effect from 09 August 2018 to 31 May 2023”.
5.
In addition to the second contract, the parties signed two more documents: the agreement
on the Provision of a Motor Vehicle for Business and personal use of the Player and a payroll
deduction agreement.
6.
According to Art. III par. k of the agreement on the Provision of a Motor Vehicle for Business
and Personal use “(…) the Player hereby agrees to pay the Club the sum of EUR 3.168,19
for the use of the Motor Vehicle for personal purposes (…)”. According to art. 1 par. 3 of
the payroll deduction agreement: “The Club and the Player have agreed that based on this
Agreement the Club will make regular monthly deductions from the Player's remuneration
(hereinafter referred to as the "salary'') in favour of the Club”.
7.
On 30 June 2020, the parties signed another contract (hereinafter: the third contract), valid
from 1 July 2020 until 31 May 2025.
8.
On the same date, the parties signed Annex 1 to the contract, according to which the
Respondent agreed to pay the Claimant a monthly salary of EUR 31,800 gross and a signon fee of EUR 100,000, payable as follows:
- EUR 25,000 payable on or by 31 December 2020;
- EUR 35,000 payable on or by 30 April 2021;
- EUR 40,000 payable on or by 30 September 2021.
9.
Lastly, clause X.6 (b) of the third contract states that “the Player is entitled to unilaterally
withdraw from this agreement exclusively if the Club repeatedly violates material provisions
of this contract and the Player notified the club on this within 30 days from finding out the
repeated material violation of a contractual obligation (…)”.
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10. On 2 September 2020, the Claimant/Counter-Respondent submitted a claim against the
Respondent/Counter-Claimant before the FIFA DRC (Ref. 20-01251/pmu) and on 18 February
2021, the FIFA DRC rendered a decision in said case, condemning the Respondent/CounterClaimant to pay the amount of EUR 42,705 as the outstanding amount for the period
between March and June 2020 to the Claimant/Counter-Respondent.
11. On 19 March 2021, the Respondent/Counter-Claimant sent a letter to the Claimant/CounterRespondent, informing that he had outstanding car payments due to it, in the amount of EUR
65,311.72 and proposed that he signs an addendum to the contract to allow the it to deduct
EUR 3,168.19 per month for the car.
12. On 29 March 2021, the Claimant/Counter-Respondent responded and stated that it was the
Respondent/Counter-Claimant that stopped deducting the car payments from his salary and
agreed that the down payment for the car in the amount of EUR 24,750, should be deducted
from his sign on fee.
13. On 5 April 2021, the Respondent/Counter-Claimant sent another letter to the
Claimant/Counter-Respondent proposing to set off the debts to each other as the
Respondent/Counter-Claimant owed EUR 90,748.82 to the Claimant/Counter-Respondent
and the Claimant/Counter-Respondent owed EUR 68,479.90 to the Respondent/CounterClaimant. The Respondent/Counter-Claimant proposed to pay to the Claimant/counterRespondent a final amount of EUR 22,304.92 after setting off his debt to it.
14. 14. On 6 April 2021, the Claimant/Counter-Respondent responded and stated that he did
not agree with the content of the letter (“feeling undue pressure”) and that he would consult
with his lawyer and revert once he has the correct calculations.
15. On the same date, the Respondent/Counter-Claimant replied and denied that it had exerted
any undue pressure on the Claimant/Counter-Respondent and invited him to submit a claim
to FIFA in case he did accept its position as to the set off.
16. On 14 April 2021, the Respondent/Counter-Claimant made a payment of EUR 22,304.92 to
the Claimant/Counter-Respondent’s bank account and on the same date, the
Claimant/Counter-Respondent reiterated that he did not agree with the content of the set
off letter and proceeded to refund the money credited to his account.
17. On 22 April 2021, the Claimant/Counter-Respondent terminated his contract with the
Respondent/Counter-Claimant, stating that he had been mistreated by the
Respondent/Counter-Claimant and that he had outstanding salaries for February and March
2021, among other overdue payments.
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18. On the same date, the Respondent/Counter-Claimant opened an internal disciplinary
procedure against the Claimant/Counter-Respondent for alleged absence at a team training,
granting him until 3 May 2021 to provide his position.
19. On 23 April 2021, the Respondent/Counter-Claimant contested the termination stating that
the Claimant/counter-Respondent had not sent a default notice in connection with his
outstanding salaries before terminating the contract and therefore informed him that he
terminated his contract without just cause.
20. On 19 May 2021, the Claimant/Counter-Respondent submitted to FIFA a request for
execution of the decision (20-01251), stating that the Respondent/Counter-Claimant had
failed to comply with the decision despite several reminders sent to it.
21. On 10 June 2021, the Claimant/Counter-Respondent filed a claim against the
Respondent/Counter-Claimant.
22. On 22 June 2021, after the claim had been submitted to FIFA, the Respondent/CounterClaimant wrote to the Claimant/Counter-Respondent and stated that he cannot contest the
set off and at the same time keep the car and not pay for it, granting him 7 days to pay the
full price as per the payment schedule agreement or accept the set off.
23. On 29 June 2021, the Claimant/Counter-Respondent sent a letter to the
Respondent/Counter-Claimant, stating that he wishes to retain the car, but contesting the
evaluation of the car, namely the down payment of EUR 24,000. The Claimant/CounterRespondent however recognised that he owes an amount of EUR 38,018.28 as monthly
payments for the car for 12 months and EUR 12,048 as accessories to the car, inviting the
Respondent/Counter-Claimant to a meeting on 30 June 2021 to further discuss.
24. On 17 July 2021, the Claimant/Counter-Respondent signed a contract with the Saudi Arabian
club Al-Hazem (hereinafter: the Intervening Party), valid from the date of signing until 16 July
2022 for a total amount of USD 900,000.
II. Proceedings before FIFA
25. On 10 June 2021, the Claimant/Counter-Respondent 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
26. According to the Claimant/Counter-Respondent, the Respondent/Counter-Claimant failed to
respect its contractual obligations leading him to terminate the contract.
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27. According to the Claimant/Counter-Respondent, despite a previous decision rendered by FIFA
(Ref. 20-01251/pmu), the Respondent/Counter-Claimant still failed to comply with its
contractual obligations and the salaries related to the months of February and March 2021
were not paid.
28. The Claimant/Counter-Respondent adds that the Respondent continued with its abusive
behaviour:
forcing him to train alone;
evicted from a property with a 1 days’ notice;
intimidated by the Club President as a result of the previous claim submitted to FIFA;
was made the subject of negative publicity in the media;
attempting to force him to sign a settlement agreement in connection with an ongoing
dispute at FIFA.
29. According to the Claimant/Counter-Respondent, the cumulative effect of the above incidents,
in addition to the fact that his previous claim against the Respondent/Counter-Claimant at
FIFA was successful, led to “irretrievable breakdown of trust between the parties”.
30. The Claimant/Counter-Respondent submits that on 19 March 2021, he received a letter from
the Respondent/Counter-Claimant, informing him that he had outstanding car payments due
to it.
31. On 29 March 2021, the Claimant/Counter-Respondent sent a response stating that he had
never stopped the payment of the car leasing, indeed, it should be noted that as per “Payroll
deduction agreement” concluded between the parties, the Respondent/Counter-Claimant
should deduct from the monthly salary agreed the amount related to the payment of the car
leasing.
32. The Claimant/Counter-Respondent adds that on 5 April 2021, the Respondent/CounterClaimant sent a formal communication, suggesting the offer of a set-off agreement to
regularise all the amounts that are due to the Claimant, granting him a deadline of 1 day to
respond.
33. In such communication, the Claimant/Counter-Respondent adds that the
Respondent/Counter-Claimant acknowledged and recognized that it owes the following
amount to him:
- EUR 42,705 related to the FIFA Decision numbered 20-01251/pmu;
- EUR 24,039.91 related to February 2021 monthly salary;
- EUR 24,039.91 related to March 2021 monthly salary.
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34. Furthermore, the Claimant/Counter-Respondent submits that he responded stating that he
was “feeling undue pressure” and disagreed with the above proposal requesting for more
time to consult with his accountant and lawyer.
35. The Claimant/Counter-Respondent adds that the Respondent/Counter-Claimant offered a
set-off, and without his consent, sought to enforce this set-off by making payment of the
calculated payment on 14 April 2021. Having not consented to this offer, the
Claimant/Counter-Respondent states that he sent the money back without delay on 15 April
2021.
36. The Claimant/Counter-Respondent submits that as a result of the above, on 21 April 2021,
he sent a letter to the Respondent/Counter-Claimant seeking to terminate the contract, and
inviting it to propose a solution in relation to the overdue payments.
37. In response to the above, the Claimant/Counter-Respondent adds that the
Respondent/Counter-Claimant sought to open disciplinary proceedings against him and in
any case, failed to recognise its financial liability towards him.
38. According to the Claimant/Counter-Respondent, after several attempts to resolve the issue
amicably, at time of this claim, the Respondent/Counter-Claimant had not made any
reasonable attempts to remedy the outstanding amounts due to him.
39. As a result, the Claimant/Counter-Respondent submits that he terminated the third contract
with just cause and is therefore entitled to outstanding remuneration and compensation as
indicated above.
40. The requests for relief of the Claimant/Counter-Respondent were the following:
•
•
•
•
•
•
•
•
to rule that he terminated the contract with just cause;
to award him EUR 93,000 as outstanding salaries for the months of March, April and 20
May 2021;
to award him signing-on bonuses, that have either fallen due at point of the final
notification sent to the Respondent/Counter-Claimant (EUR 35,000 and any amount that
has yet to fall due (namely EUR 40,000 payable on 30 September 2021);
to award him EUR 1,488,000 (the residual value of the contract) as compensation for
breach of contract, calculable as 48 months of salary until the end of the term of the
contract;
to rule that the Respondent/Counter-Claimant is liable for moral damages to be paid to
him, the value thereof to be determined by the Panel;
to award 5% interest p.a. on all the above amounts;
to rule that the Respondent is to be liable to pay all procedural costs in connection with
this matter;
to rule that the Respondent is to pay a contribution to his legal fees up to and including
the sum of British pounds (GBP) 5,000.
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b. Position of the Respondent/Counter-Respondent and counterclaim
41. According to the Respondent/Counter-Claimant, on 22 April 2021, the Claimant/CounterRespondent terminated the third contract without just cause and during the protected period.
42. The Respondent/Counter-Claimant added that the Claimant/Counter-Respondent omitted to
mention many of the facts in the claim as they do not suit his case by simply submitting that
he was entitled to terminate the third contract, because he was subjected to abusive conduct
and was unlawfully not paid two salaries.
43. The Respondent/Counter-Claimant rejects those grounds and asserts that the
Claimant/Counter-Respondent did not substantiate the existence of a just cause for the
termination of the third contract.
44. As to the alleged abuse, the Respondent/Counter-Claimant submits that most of the
Claimant/Counter-Respondent’s allegations, were or could have been stated at FIFA during
the previous proceedings. Therefore, according to the Respondent/Counter-Claimant, these
complaints of abuse, except the one regarding his removal from the property, existed at the
time of the decision of the FIFA DRC dated 18 February 2021 and cannot be heard in these
proceedings “because of res judicata”.
45. The Respondent/Counter-Claimant adds that according to FIFA and CAS well-established
jurisprudence, a party will only establish a just cause to terminate the employment contract if
it had previously warned the other party of its unacceptable conduct or attitude. Besides, the
seriousness and frequency of the breach, the circumstances under which it occurred, and the
club or player’s attitude must also be considered in determining whether a party has just
cause to terminate a contract.
46. According to the Respondent/Counter-Claimant, these requirements are expressly stipulated
in clause X.6 (b) of the third contract. However, there is no record of any of these claims
having ever been properly raised by the Claimant/Counter-Respondent at the appropriate
time and never formally put it in default.
47. In this respect, the Respondent/Counter-Claimant underlines that a distinction must be made
between ordinary communications between the employer and the employee, which have a
purely informative function, and communications that are intended to have some legal effects
over contractual rights such as, in particular, the termination of the employment contract.
According to the Respondent/Counter-Claimant in order to protect legal certainty, this
second type of communication requires a certain degree of formality, which was certainly not
present in the case at hand.
48. The Respondent/Counter-Claimant adds that a party with a right to terminate an employment
contract without notice can waive such right after it has arisen, either explicitly or through
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implied conduct, by demonstrating to the other party a willingness to continue the
contractual relationship despite the circumstances giving rise to the termination right.
49. Based on the written and oral evidence submitted in the present case, the
Respondent/Counter-Claimant states that it demonstrated its willingness to continue the
employment relationship with the Claimant/Counter-Respondent on several occasions.
50. Additionally, the Respondent/Counter-Claimant submits that the Claimant/CounterRespondent created legitimate expectations that he was willing to continue the employment
relationship by claiming that “he was waiting for a sort of advice” from his then-lawyer on
issues related to the set-off of claims.
51. According to the Respondent/Counter-Claimant, the Claimant/Counter-Respondent alleges
various breaches of the contract some of which he did not even mention in the termination
letter. Therefore, the Respondent/Counter-Claimant submits that the FIFA DRC should decide
based on the grounds invoked by the Claimant/Counter-Respondent in the termination letter
and should disregard any other circumstances.
52. Furthermore, according to the Respondent/Counter-Claimant, the Claimant/CounterRespondent alleges abuse, which do not constitute material breaches. The
Respondent/Counter-Claimant adds that the Claimant/Counter-Respondent does not prove
that it was repeatedly in breach of an essential term that goes to the root of the third contract
and that it failed to remedy the alleged violations after being warned.
53. Therefore, the Respondent/Counter-Claimant submits that the Claimant/CounterRespondent failed to establish any material breach of the third contract at the termination
date and that “his radical decision to terminate was not an ultima ratio measure”.
54. Finally, the Respondent/Counter-Claimant submits that the evidence submitted by the
Claimant in support of the claims of abuse is unconvincing. For example, the
Respondent/Counter-Claimant states that it was contractually entitled to put the
Claimant/Counter-Respondent on a separate training schedule for just one training.
Therefore, he cannot reasonably sustain that “the mere fact that he was excluded from
training and as such, ostracized would have led to the breakdown of his trust and confidence
in his employment relationship”.
55. According to the Respondent/Counter-Claimant, it is striking that although the
Claimant/Counter-Respondent alleges various abuses by it, the Claimant/CounterRespondent failed or omitted to elaborate on those objections in the merits of his claim. For
this sole reason, the Respondent requests that the FIFA DRC dismisses these allegations as
unsubstantiated.
56. In summary, the Respondent/Counter-Claimant denies all allegations of abuse.
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57. As to the outstanding salaries, the Respondent/Counter-Claimant submits that the
Claimant/Counter-Respondent did not meet the prerequisite of “two months late” set out in
the third contract, when he terminated said contract on 22 April 2021.
58. The Respondent/Counter-Claimant further submits that at the termination date, it had no
debt to the Claimant/Counter-Respondent under the relevant contract. Besides, the
Claimant/Counter-Respondent did not put it in default and did not grant it 15 days to remedy
the alleged breaches. Therefore, he did not fulfil any of the two prerequisites to terminate
based on Article 14bis RSTP.
59. The Respondent/Counter-Claimant further states that some arguments raised by the
Claimant/Counter-Respondent as justification to terminate the contract were “made
retroactively and some are time barred by res judicata”.
60. According to the Respondent/Counter-Claimant, as of the coming into force of the third
contract on 1 July 2020, the Claimant/Counter-Respondent continued to use the car provided
to him without paying for it.
61. In the meantime, on 19 March 2021, the Respondent/Counter-Claimant submits that it sent
a letter to the Claimant/Counter-Respondent insisting on regulating the situation with the
payments due in relation to the car use and extra costs. In particular, the letter stated that
the Claimant/Counter-Respondent owed EUR 65,311.71 for the car, broken down as follows:
- EUR 24,750 as a down payment;
- EUR 12,048 for Brabus car accessories; and
- EUR 28,513.71 for 9 monthly payments (i.e. 9 x EUR 3,168.19).
62. In this regard, the Respondent/Counter-Claimant adds that it proposed to the
Claimant/Counter-Respondent to pay off the whole debt towards the Respondent/CounterClaimant and the leasing company to acquire the car or pay the debt by signing an addendum
to his contract on deductions from salary for monthly instalment payments of EUR 3,168.19.
63. According to the Respondent/Counter-Claimant, on 29 March 2021, the Claimant/CounterRespondent responded and stated that “In regards to the car settlement payment and down
payment of EUR 24,750, I’m still waiting for my accountant to calculate whether I have
received a signing fee of the second contract, because we have agreed with the Club that the
car’s down payment will be deducted from my signing fee’s second contract. I will pay any
missing monthly car payments and accessories fee. I’ve never stopped paying monthly car
payments, the Slovan is the one who stopped making relevant deductions (…)”.
64. On 5 April 2021, the Respondent/Counter-Claimant submits that it sent a “set off” letter to
the Claimant/Counter-Respondent stating that it owed him a total amount of EUR 90,784.82
and that the Claimant/Counter-Respondent owed EUR 68,479.90 to it for the car payments.
As a result, the Respondent/Counter-Claimant proposed to offset these amounts and stated
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that as a result, it would owe the Claimant/Counter-Respondent a final amount of EUR
22,304.92 payable in 2 equal instalments by no later than 30 April and 31 May 2021.
65. According to the Respondent/Counter-Claimant, on 14 April 2021, it made a payment of EUR
22,304.92 to the Claimant/Counter-Respondent, but that the Claimant/Counter-Respondent
refunded said amount stating that he never agreed to the contents of the “set-off” letter and
terminated his contract on 22 April 2021.
66. The Respondent/Counter-Claimant submits that on 23 April 2021, it informed the
Claimant/Counter-Respondent that his termination was without just cause and “invited him
to withdraw the termination notice and contact them for a settlement”.
67. On 21 May 2021, the Claimant/Counter-Respondent wrote to FIFA stating that he did not
agree to any set-offs.
68. Nonetheless, the Respondent/Counter-Claimant submits that on 9 June 2021, it paid to the
Claimant/Counter-Respondent an amount of EUR 16,451.28 with reference to “wages” for
his salary from 1 to 21 April 2021 but that on 10 June 2021, the Claimant/CounterRespondent responded and states that he received an unsolicited amount of EUR 16,451.28
that he asked the bank to refund but later on 22 June 2021 stated that from his
understanding, “that was partial payment of the outstanding salaries from the decision Ref.
No. 20-01251”.
69. On 29 June 2021, the Claimant/Counter-Respondent wrote to the Respondent/CounterClaimant, stating that “he wishes to retain the vehicle and would seek for the vehicle to be
transferred from the club’s name to his own name.” The Claimant/Counter-Respondent also
said that he disputes the down payment on the car but does recognise that he owes monthly
payments up to the amount of EUR 38,018.28. In addition, he recognises that the accessories
cost EUR 12,048.00, and thus “the amount owing by him to the Club would be EUR
50,066.28”.
70. On 30 June 2021, the Respondent/Counter-Claimant submits that it made two payments to
the Claimant/Counter-Respondent for the amount of EUR 24,039.91 and EUR 50,289.91 for
outstanding amounts, in order to avoid complications with its licensing by the SFA and UEFA
Club Licensing. However, the Respondent/Counter-Claimant adds that these payments do
not amount to an acknowledgment of debt and hereby claims reimbursement of the overpaid
amounts.
71. On 14 July 2021, the Claimant/Counter-Respondent once again wrote to the
Respondent/Counter-Claimant, disputing that the down payment on the car was to be borne
by him.
72. On 16 July 2021, the Respondent/Counter-Claimant replied to the Claimant/CounterRespondent stating that “the expression of set-off is a unilateral act, which does not have to
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comply with any formal requirements and can even result from a conclusive act. It does not
require the mutual consent of the parties”.
73. After several exchanges, to no avail, the Respondent/Counter-Claimant states that on or
around 10 July 2021, the Claimant/Counter-Respondent signed a new contract with AlHazem, Saudi Arabia.
74. According to the Respondent/Counter-Claimant, at the date of contract termination, the
following payments were due:
- EUR 90,784.82 due by the Respondent/Counter-Claimant to the Claimant/CounterRespondent (EUR 48,079.82 net (i.e., 2 x 24,039.91) for his February and March 2021 salaries
per the Third Contract and EUR 42,705 net as per the DRC Decision;
- EUR 43,729.90 due by the Claimant/Counter-Respondent to the Respondent/CounterClaimant (i.e., EUR 40,561.71 + EUR 3,168.19) as per the Car Agreement.
75. However, seeing as the Claimant/Counter-Respondent returned the amount of EUR
22,304.92 paid to him, the Respondent/Counter-Claimant submits that it is not to blame for
this as the Claimant “clearly acted in bad faith to prevent a condition from being fulfilled”.
76. Therefore, according to the Respondent/Counter-Claimant, after setting off the respective
monetary claims, on 22 April 2021, it would be in debt to the Claimant/Counter-Respondent
for the amount of EUR 24,750 net (i.e. EUR 90,784.82 – EUR 43,729.90 – EUR 22,304.92),
which is less than two monthly salaries.
77. Consequently, according to the Respondent/Counter-Claimant, even putting aside the
dispute over the down payment for the car for a moment, the Claimant/Counter-Respondent
would still not meet the first prerequisite stipulated in Article 14bis RSTP.
78. In continuation, the Respondent/Counter-Claimant submits that on the other hand, if one
takes into account the set-off applied, the only discrepancy between the parties lies in its
legitimacy not to pay the February and March 2021 salaries in full on account or in the
application of Clause III.1(k) of the car agreement, Clause I.3 of the Payroll Deduction
Agreement, and their other agreements.
79. Therefore, the Respondent/Counter-Claimant requests that the FIFA DRC should determine
whether or not the partial payment for the claimed salaries constituted just cause and entitled
the Claimant/Counter-Respondent to unilaterally terminate the third contract.
80. The Respondent/Counter-Claimant submits that in a letter dated 29 March 2021, the
Claimant/Counter-Respondent acknowledged his debt to the Respondent/Counter-Claimant
in the amount of EUR 24,750 as he stated that he wanted to double check with his
accountant whether the car payments had been deducted from the sign on fee. As a result,
the Respondent/Counter-Claimant submits that it did not deduct said amount from the sign
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on fee and that seeing as the Claimant/Counter-Respondent refused to sign the new
documents regulating the car payments, it decided to send him the proposal in the “off-set”
letter.
81. As a result of the above letter, the Respondent/Counter-Claimant states that it decided to set
off its claims for the payments related to the car against the Claimant/Counter-Respondent’s
salaries for February and March 2021 and the amount due on the previous FIFA DRC Decision.
82. The requests for relief, in the counterclaim of the Respondent/Counter-Claimant, as
amended, were the following:
•
•
•
•
•
Dismiss all Claimant/Counter-Respondent’s claims insofar as they are admissible;
Order the Claimant/Counter-Respondent the outstanding amount of EUR 87,002.58,
plus interest of 5% p.a. as from 2 August 2021, until the effective date of payment;
Order the Claimant/Counter-Respondent to pay compensation for damages in the
amount of EUR 1,630,165.12, plus interest of 5% p.a. from 23 April 2021, until the
effective date of payment;
Declare Al-Hazem FC jointly and severally liable for the payment of the compensation
above;
Impose sporting sanctions on both Respondents based on Articles 17.3 and 17.4 and
24bis RSTP.
c. Response Claimant/Counter-Respondent to the counterclaim
83. The Claimant/Counter-Respondent requested that the FIFA DRC disregards all requests for
relief outlined by the Respondent/Counter-Claimant and rule that he terminated the contract
with just cause therefore awarding him EUR 93,000 as unpaid salaries for March to May
2021, EUR 1,488,000 as the residual value of the contract for 48 months and moral damages,
the amount to be determined by the FIFA DRC panel.
84. Furthermore, the Claimant/Counter-Respondent reiterates that on 21 April 2021, he put in a
notification for termination of the employment agreement between the parties, which led to
subsequent communications finally resulting in his letter to the Respondent dated 21 May
2021.
85. The Claimant/Counter-Respondent submits that the principle of res judicata as submitted by
the Respondent is not applicable, as there are new circumstances that were established and
dealt with in the claim.
86. According to the Claimant/Counter-Respondent, it is demonstrable that he informed the
Respondent of his concerns, that these issues have been prevalent for a significant period of
time, and that they had been referred to in a previous proceeding. Thus it cannot be stated
that these issues were raised” without warning”.
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87. The Claimant/Counter-Respondent further submits that he does not deny liability for the
monthly instalments for the car.
88. The Claimant/Counter-Respondent denies ever receiving the set off letter dated 5 April 2021
and also denies that he ‘abandoned’ the working place as he remained in evidenced
communication with the Respondent/Counter-Claimant, but however confirmed that as the
situation progressed, he moved on to another club.
89. The Claimant/Counter-Respondent adds that the flawed presumption by the
Respondent/Counter-Claimant that there was an immediate termination disregards all
subsequent communication, culminating in the final letter of 21 May 2021. According to the
Claimant/Counter-Respondent, the suggestion that the decision to terminate the contract
was radical, and not ultima ratio appears to ignore communication post the first notification
on 21 April 2021, which expressly invites the Respondent/Counter-Claimant to remedy the
breach.
90. As to the set off letter, the Claimant/Counter-Respondent reiterates that he never agreed to
the payment plan proposal by the Respondent/Counter-Claimant.
91. As to signing a contract with the new club, the Claimant/Counter-Respondent submits that
he was first informed of contact from the new club by way of his agent on 25 June 2021.
Prior to this date, there had never been any communication between him and the new club.
92. The Claimant/Counter-Respondent adds that he was finally registered with the new club on
23 August 2021 after the initial cancellation of the registration request by the Slovak Football
union.
93. In view of the above, the Claimant/Counter-Respondent submits that there is no way that the
new club induced him to breach his contract.
94. In conclusion, the Claimant/Counter-Respondent reiterates the position in his claim and
requests that the counterclaim be rejected.
d. Position Intervening Party to the matter at hand
95. The Intervening party in response to the counterclaim submits that the Claimant/CounterRespondent terminated his contract with just cause in accordance with the documents
submitted to it during the contract negotiation.
96. The Intervening party adds that it concluded a contract with the Claimant/CounterRespondent on 17 July 2021 and that the Claimant/Counter-Respondent terminated his
contract with the Respondent/Counter-Respondent on 22 April 2021, i.e. before 3 months
of starting negotiation with the new club.
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97. According to the Intervening party, the long period between the termination of the contract
and the conclusion of the new contract proves irrefragably that there was no relation between
the parties at the moment of the contract termination and hence, it was materially impossible
that it could induce the Claimant/Counter-Respondent to breach his contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
98. 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 10 June 2021 and submitted for decision
on 16 December 2021. Taking into account the wording of art. 34 of the October 2021
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.
99. 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 (August 2021), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Spanish player and a Slovakian
club, with the intervention of a Saudi Arabian club.
100.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 Player (August 2021 edition) and
considering that the present claim was lodged on 10 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
101.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
102.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
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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
103.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 whether the unilateral termination
of the third contract by the Claimant/Counter-Respondent, made on 22 April 2021, was made
with or without just cause.
104.In continuation, the members of the Chamber noted that their task was to determine whether
the termination of the contract by the Claimant/Counter-Respondent was with or without
just cause, and what the consequences of such termination would be.
105.Based on the submissions on file, the Claimant/Counter-Respondent alleged that at the time
of the unilateral termination the contract, on 22 April 2021, the club owed him the monthly
salaries for February and March 2021, and moreover, the club had still not paid his
outstanding amount of EUR 42,705 as per the previous FIFA DRC decision. In this respect, the
Chamber however noted that the Claimant/Counter-Respondent had not put the club in
default for said outstanding amounts, at least, no default letter was made available by the
Claimant/Counter-Respondent in this respect.
106.The Chamber also noted that in the case at hand the Respondent/Counter-Claimant bore the
burden of proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, the evidence provided by the Respondent/CounterRespondent does not prove beyond doubt the payment of the amounts claimed as
outstanding by the Claimant/Counter-Respondent.
107.As a result, the Chamber concluded that at the time of the unilateral termination of the
contract by the Claimant/Counter-Respondent, on 22 April 2021, at least two monthly
salaries remained unpaid without valid reason by the Respondent/Counter-Claimant.
108.Thus, the Chamber concluded that the Claimant/Counter-Respondent had a just cause to
unilaterally terminate the contract, based on art. 14 of the Regulations. At this point, the
Respondent/Counter-Claimant’s claim for compensation for breach of contract is thus
rejected.
109.However, the Chamber also wished to point out that the Claimant/Counter-Respondent does
not contest the allegations of the Respondent/Counter-Claimant that he had car payments
due to the Respondent/Counter-Claimant. In this respect, the Chamber decided to accept this
part of the counterclaim of the Respondent/Counter-Claimant.
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110.What is more, the members of the Chamber wished to point out that in view of the above
considerations, that both the claim of the Claimant/Counter-Respondent and the
counterclaim of the Respondent/Counter-Claimant are partially accepted.
ii. Consequences
111.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/Counter-Claimant, as well as the fact that the Claimant/Counter-Respondent
allegedly had also outstanding amounts to be paid to the Respondent/Counter-Claimant.
112.The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant/Counter-Respondent, are
equivalent to two monthly salaries under the contract, amounting to EUR 20,871.72 each.
113.As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent/Counter-Claimant is liable to pay to the
Claimant/Counter-Respondent, the amounts which were outstanding under the contract at
the moment of the termination, i.e. EUR 41,743.44 (two times EUR 20,871.72).
114.In addition, taking into consideration the Claimant/Counter-Respondent’s request as well as
the constant practice of the Chamber in this regard, the latter decided to award the
Claimant/Counter-Respondent interest at the rate of 5% p.a. on the outstanding amounts as
from the respective due dates until the date of effective payment.
115.Moreover, taking into account the counterclaim lodged by the Respondent/CounterClaimant, as well as the announcement made by the Claimant/Counter-Respondent in the
letter dated 29 June 2021 and the amounts mentioned by the parties in their respective
submissions, the Chamber further decided that the Claimant/Counter-Respondent should be
obliged to pay the Respondent/Counter-Claimant the amount of EUR 12,048 for the
accessories of the car, as well as the amount of EUR 57,027.42 (i.e. 18 monthly payments of
EUR 3,168.19 each) as monthly car instalments, therefore, the total amount of EUR
69,075.42.
116.Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant/Counter-Respondent by the Respondent/CounterClaimant 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.
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117.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.
118.As a consequence, the members of the Chamber determined that the amount of
compensation payable to the Claimant/Counter-Respondent by the Respondent/CounterClaimant 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 non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
119.Bearing in mind the foregoing as well as the claim of the Claimant/Counter-Respondent, the
Chamber proceeded with the calculation of the monies payable to the Claimant/CounterRespondent 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 EUR 1,276,995.50
(i.e. the residual value of the contract, consisting of EUR 75,000 as bonuses and EUR
1,201,996 as 50 monthly salaries of EUR 24,039.91) serves as the basis for the determination
of the amount of compensation for breach of contract.
120.In continuation, the Chamber verified as to whether the Claimant/Counter-Respondent 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
Claimant/Counter-Respondent’s general obligation to mitigate his damages.
121.Indeed, the player found on 17 July 2021 employment with the Saudi Arabian club Al Hazem.
In accordance with the pertinent employment contract, the player was entitled to a total
amount of USD 900,000. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of USD 900,000, which corresponds to approximately EUR
762,164 on 17 July 2021.
122.In addition, the Chamber deemed it necessary to also deduct the amount of EUR 24,750,
which corresponds to the down payment for the car, from the Claimant/Counter-Respondent
receivables, as he agreed that said amount would be deducted from his sign-on fee.
123.Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
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payables. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason i.e. overdue payables by the Respondent/Counter-Claimant, and
therefore decided that the player shall receive additional compensation.
124.In this respect, the DRC decided to award the amount of additional compensation of EUR
72,119.73, i.e. three times the monthly remuneration of the Claimant/Counter-Respondent.
125.Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Respondent/Counter-Claimant must pay
the amount of EUR 562,201.23 to the Claimant/Counter-Respondent (i.e. EUR 1,276,995.50
minus EUR 762,164 plus EUR 72,119.73), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
126.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 10 June 2021 until the date of effective payment.
iii. Compliance with monetary decisions
127.Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
128.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. What is more, the DRC stated that, against players, the consequence of the failure
to pay the relevant amounts in due time shall consist of a restriction on playing in official
matches up until the due amounts are paid. The overall maximum duration of the restriction
shall be of up to six months on playing in official matches.
129.Therefore, bearing in mind the above, the DRC decided that both the Claimant/CounterRespondent, as well as the Respondent/Counter-Claimant must pay the full amounts due
(including all applicable interest) to the other party within 45 days of notification of the
decision, failing which, at the request of either the Claimant/Counter-Respondent, 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. 24bis par. 2, 4, and 7 of the Regulations, or, at the
request of the Respondent/Counter-Claimant, a restriction on playing in official matches for
a maximum duration of six months on playing in official matches.
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130.The Claimant/Counter-Respondent and the Respondent/Counter-Claimant shall make full
payment (including all applicable interest) to the bank account provided by the other party in
the Bank Account Registration Forms, which are attached to the present decision.
131.The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8 of
the Regulations.
d. Costs
132.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.
133.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.
134.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/Counter-Respondent, Mohammed Rharsalla Kadfi, is partially
accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Slovan Bratislava, is partially
accepted.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, the
following amount(s):
- EUR 41,743.44 as outstanding remuneration plus 5% interest p.a. until the date of effective
payment as follows:
• on the amount of EUR 20,871.72 as from 21 March 2021;
• on the amount of EUR 20,871.72 as from 21 April 2021.
- EUR 562,201.23 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 10 June 2021 until the date of effective payment.
4.
The Claimant/Counter-Respondent has to pay to the Respondent/Counter-Claimant, the
following amount(s):
- EUR 69,075.42 as car accessories and monthly instalments for the car.
5. Any further claims of the parties are rejected.
6. Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), 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/Counter-Claimant 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.
3. The Claimant/Counter-Respondent shall be banned from playing in official matches up until
the due amount is paid. The overall maximum duration of the restriction shall be of up to
six months on playing in official matches.
4. 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.
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7. The consequences shall only be enforced at the request of the Claimant/CounterRespondent and/or the Respondent/Counter-Claimant in accordance with art. 24bis par.
7 and 8 and art. 24ter of the Regulations on the Status and Transfer of Players.
8. 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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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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