Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 4 June 2020,
in the following composition:
Clifford Hendel (US A/France), Deputy Chairman
Elv is Chetty (S ey chelles ), member
Tom is lav Kas alo (Croatia), member
on the claim presented by the player,
Os am a Malik, Australia,
represented by Professional Footballers Australia
as Claimant / Counter-Respondent I
against the club,
Al-Batin S ports Club, Saudi Arabia,
represented by Mr Nasr El-din Azzam
as Respondent / Counter-Claimant
with the club,
Perth Glory FC, Australia,
as Counter-Respondent II
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 20 January 2019, the Australian player, Osama Malik (hereinafter: the player), and
the Saudi club, Al-Batin Sports Club, entered into an employment contract
(hereinafter: the contract), valid as from the date of its signature until 19 July 2020.
2.
In accordance with clause 4 of the contract, the player was entitled to receive from
the club, inter alia, the amount of USD 600,000, as follows:
“The [club] shall pay to the [player] the amount of (USD 600,000) six hundred
thousand dollars net and free of taxes as the total amount of the contract divided as
following:
3.
The [club] shall pay to the [player] the amount of (USD 250,000) two hundred
fifty thousand dollars as the player advance.
The [club] shall pay to the [player] the amount of (USD 350,000) three hundred
fifty thousand dollars as the player salary like (19,444 x 18 months) nineteen
thousand and for hundred forty four dollars”.
Furthermore, the said clause also stipulated that the player would be entitled to the
following benefits:
“Other benefits:
1- Housing allowance: secure.
2- Transportation: the [club] shall provide a car for the [player].
3- The [club] shall provide the [player] one economy ticket from Australia to Saudi
Arabia and vice versa.
Annual vacation is agreed by the parties.
Insurance covering injury, medical treatment, sickness disability or death during the
terms of his contract with the [player], provided that it shall include insurance
coverage for the cases whose effects extend after the end of the contract.
To allow the player chosen within the national team to join playing or training
immediately when requested by the association concerned in accordance with the
regulations”.
4.
On 18 October 2019, the player lodged a claim against the club before FIFA,
requesting from the latter outstanding remuneration and compensation for breach of
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 2 of 12
contract in the amount of USD 307,428, plus interest on said amount as from 16 June
2019 until the date of effective payment; as well as AED 5,270, calculated by the
player as follows:
“Calculation of compensation
Outstanding salary as at the date of
termination (3 x months at USD 19,444)
USD 58,332
Mitigated Compensation
(14 x months at USD 19,444, i.e. USD
272,216)
USD 190,764
(less mitigation from Perth Contract, i.e.
USD 81,452)
Additional Compensation
(3 x months at USD 19,444)
USD 58,332
Return flight to Australia
AED 5,270
Total Amount of Compensation Due to
the Player
USD 307,428 8NET)
AED 5,270
5.
In his claim, the player explained that he put the club in default of payment on
several occasions, inter alia, on 30 April, 19 May, 21 May and 25 May 2019, by means
of which the player informed the club that he had only received the payment of one
monthly salary on 5 March 2019. In the said correspondence, the player also asked the
club on which dates he could leave on annual vacation.
6.
In his claim, the player explained that, thereto, the club firstly replied on 18 May
2019, informing the player about the intention of the club to terminate the contract
with the player by signing a mutual termination agreement and the player would
receive his outstanding salaries until April 2019 and could leave on vacation. In his
claim, the player explained that he refused to sign such an agreement and, as a
consequence, the club denied his request to leave on vacation and also convoked the
player to train at the club headquarters twice a day, at 13h and 22:30h, every day.
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 3 of 12
7.
8.
Thereafter, on 31 May 2019, the player put the club in default of payment of 3
monthly salaries (corresponding to the monthly salaries due on 19 March, 19 April
and 19 May 2019), granting the club a 15 days’ deadline to remedy the default.
Later, on 14 June 2019, in reply to a further correspondence from the player dated 7
June 2019, the club maintained that it was going through a difficult financial
situation upon its relegation to the second division.
9.
In reply thereto, the player sent another correspondence dated 15 June 2019, where
the player highlighted the main issues at stake: 1.) the outstanding salaries due; 2.)
the abusive conduct of the club, obliging the player to comply with an “abusive
training regime”; 3.) the denial of the club to grant the player his annual vacations;
4.) the club’s failure to grant the player his work permit; however, to no avail.
10.
In this context, the player explained that despite him complying with his contractual
obligations, the club failed to comply with its financial obligations towards him and
even adopted an abusive conduct towards the player. Therefore, -explained the
player- after all the correspondence exchanged with the club, he had no alternative
but to terminate the contract in view of the constant breaches committed by the club.
In his claim, the player also deemed that he terminated the contract with just cause,
since at the date of termination 3 monthly salaries were outstanding and since the
player had previously put the club in default of payment, granting the latter 15 days
in order to remedy its default; hence, in compliance with art. 14bis of the
Regulations.
11.
The Respondent contested the Player’s claim and lodged a counterclaim against the
Claimant and his new club.
12.
In his counterclaim, the Respondent requests the following:
“1. To fully reject the Player’s claim.
2. To establish that the Club shall not pay any compensation of whatsoever kind
related to the Player’s claim.
3. As consequence of the above, to fully accept the present counterclaim and declare
that the Player, Osama, has unilaterally terminated the Employment Contract, and as
a result has caused considerable damage to the Counter-Claimant, Al Batin Club.
4. As a result of said breach, to order the claimant to pay to the respondent as a
refund base on Pro rata basis an amount of (USD 119,556) and;
5. To consider that the Counter-Respondent shall compensate the Counter-Claimant
by paying to it at least the following amounts:
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 4 of 12
Remuneration pending until the expiration of the Employment Contract: USD
272,216 (Two Hundred Seventy Two Thousand Two Hundred and Sixteen US
Dollars);
Loss of the Player’s services and replacement value: USD 400,000 (Four
Hundred Thousand US Dollars);
Specificity of sport: USD 116,664 (One Hundred Sixteen Thousand Six Hundred
Sixty-Four US Dollars).
6. That the Counter-Claimant’s new club, Perth Glory, is found jointly and severally
liable for any and all compensation to be awarded in accordance with the FIFA RSTP.
7. Sporting sanctions shall be imposed on the player and his new club.
8. The Player’s new club is given sporting sanctions in accordance with Article 17.4 of
the FIFA RSTP.
9. As per all the above, the Claimant/Counter-Respondent shall borne any and all
costs of the present proceedings.
10. That the Counter-Respondent pays an additional 5% annual interest on the
amount due to the Counter-Claimant from the due date in which the breach occurred
in accordance with Swiss law and until the date of effective payment”.
13.
The Player and Perth Glory FC executed on 5 August 2019 an employment agreement
valid from 1 August 2019 to 31 May 2022 (2019-20, 2020-21, and 2021-22 (as per TMS,
the season in Australia runs from October to May), for the following considerations:
a. Season 2019/2020: salaries of AUD 16,000 each (= USD 10,170);
b. Season 2020/2021: salaries of AUD 20,000 each (= USD 12,713);
c. Season 2021/2022: salaries of AUD 21,666.67 each (= USD 13,773).
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the
Chamber) analysed whether it was competent to deal with the matter at stake. In this
respect, it took note that the present matter was submitted to FIFA on 18 October
2019. Consequently, the 2018 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
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 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (editions October 2019
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 5 of 12
and March 2020), the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international
dimension between an Australian player, a Saudi club and an Australian club.
3.
In continuation, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In this
respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions October 2019 and March
2020), and considering that the Claimant’s claim was lodged on 18 October 2019, the
October 2019 edition of the aforementioned regulations (hereinafter: the
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, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation contained in
the 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 so doing, the members of the Chamber first noted that the player and the club
concluded an employment contract valid as from 20 January 2019 until 19 July 2020,
whereby the player was entitled to a total remuneration of USD 600,000.
6.
Subsequently, the Chamber acknowledged that, on several occasions, inter alia, on 30
April, 19 May, 21 May, 25 May 2019 and 31 May 2019, the player put the club in
default of payment, granting the club, in the latter of his default notices, a deadline
of 15 days to remedy the default, since the player had only received one monthly
salary; and that, thereby, the player further requested the club to confirm on which
date he could leave on annual holidays.
7.
In this context, the DRC further noted the argumentation of the player, who held
that, insofar the club failed to comply with its financial obligations towards him,
adopted an abusive conduct regarding his training regime, refused to grant the
player his annual holidays and failed to provide the player with his work permit, the
player unilaterally terminated the contract, in writing, on 16 June 2019.
8.
The members of the Chamber took note that, conversely, the club was of the opinion
that the player had terminated the contract without just cause, insofar the club
offered to pay to the player all his financial entitlements on 13 June 2019 and the
player refused to receive his moneys and unilaterally terminated his contract on 16
June 2019. In this context, the Chamber acknowledged the argument brought
forward by the club in connection with the lack of payment of the player’s financial
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 6 of 12
entitlements throughout the term of the contract, i.e. the financial difficulties the
club was going through upon its relegation to the second division. Based on the
foregoing, the club deemed that the intention of the player was to terminate his
contract regardless of whether the club was willing to pay all of his outstanding
entitlements and, consequently, lodged a counterclaim against him and his new club.
9.
On account of all the above, the Chamber highlighted that the underlying dispute in
the present matter, considering the conflicting positions of the parties, was to
determine whether the employment contract had been prematurely terminated with
or without just cause, by which party and on which date. In so doing, the Chamber
proceeded with an analysis of the circumstances surrounding the present matter, the
parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3
of the Procedural Rules, in accordance with which any party claiming a right on the
basis of an alleged fact shall carry the burden of proof.
10.
The members of the Chamber equally deemed appropriate to remark the general
principle that contracts ought to be respected, as otherwise, consequences have to be
assumed by the relevant party. Further, the DRC took into consideration the content
of para. 1 of art. 14bis of the Regulations, which provides that “In the case of a club
unlawfully failing 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). Alternative
provisions in contracts existing at the time of this provision coming into force may be
considered”.
11.
Bearing in mind the foregoing, the Chamber noted that the Claimant/CounterRespondent I correctly followed the proceedings established in art. 14bis of the
Regulations and therefore, in the absence of any valid justification presented by the
club, on 16 June 2019 he terminated the contract with just cause, based on the nonpayment of 3 monthly salaries.
12.
In this context, the DRC deemed it important to highlight two main aspects: 1.) that
the financial difficulties a club is undergoing –albeit inconvenient– is not a valid
reason to justify the non-payment of a player’s financial entitlements; 2.) that the
employer club has the responsibility to duly proceed with the payment of the player’s
entitlements, not being enough to offer to pay the player’s entitlements, since the
employer club must assure that the player effectively receives the amounts he is
contractually entitled to receive.
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 7 of 12
13.
As a result, the Chamber unanimously concluded that the Respondent/CounterClaimant is to be held liable for the early termination of the employment contact
with just cause by the Claimant/Counter-Respondent I.
14.
In continuation, the Chamber focused its attention on the consequences of such
termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the Claimant/Counter-Respondent I is entitled to receive from the
Respondent/Counter-Claimant an amount of money as compensation for breach of
contract in addition to any outstanding payments on the basis of the relevant
employment contract.
15.
In this regard, the DRC first addressed the issue of unpaid remuneration at the
moment when the contract was terminated by the Claimant/Counter-Respondent I
and decided that, in accordance with the general legal principle of pacta sunt
servanda, the Respondent/Counter-Claimant is liable to pay to the Claimant/CounterRespondent I outstanding remuneration in the total amount of USD 58,332,
corresponding to the monthly salaries payable on 19 March, 19 April and 19 May 2019
in the amount of USD 19,444 each.
16.
In addition, taking into consideration the Claimant/Counter-Respondent I’s claim, the
DRC decided to award him interest at the rate of 5% p.a. on the amount of USD
58,332 as outstanding salaries, as from the date on which the claim was lodged, i.e.
18 October 2019, until the date of effective payment.
17.
In continuation, having established that the Respondent/Counter-Claimant is to be
held liable for the early termination of the employment contract with just cause by
the Claimant/Counter-Respondent I, the DRC focussed its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC decided that the Claimant/Counter-Respondent I is entitled to
receive an amount of money from the Respondent/Counter-Claimant as
compensation for the termination of the contract with just cause in addition to any
outstanding payments on the basis of the relevant employment contract.
18.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant/Counter-Respondent I by the
Respondent/Counter-Claimant in the case at stake. In doing so, the members of 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 Claimant/Counter-Respondent I under the existing contract and/or the new
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 8 of 12
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.
19.
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.
20.
As a consequence, the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant 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.
21.
The DRC then turned its attention to the remuneration and other benefits due to the
Claimant under the existing contract and/or the new contract, which criterion was
considered by the DRC to be essential. The DRC deemed it important to emphasise
that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into
account both the existing contract and the new contract, if any, in the calculation of
the amount of compensation.
22.
Bearing in mind the foregoing as well as the claim of the Claimant/CounterRespondent I, the Chamber proceeded with the calculation of the monies payable to
the Claimant/Counter-Respondent I under the terms of the employment contract
from its date of termination with just cause by the Claimant/Counter-Respondent I,
i.e. as of May 2019 until July 2020, and concluded that the Claimant/CounterRespondent I would have received in total USD 272,216 as remuneration had the
contract been executed until its expiry date. Consequently, the Chamber concluded
that the amount of USD 272,216 serves as the basis for the determination of the
amount of compensation for breach of contract.
23.
In continuation, the Chamber verified whether the Claimant/Counter-Respondent I
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.
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.
24.
The Chamber noted that on 5 August 2019 the Claimant/Counter-Respondent I
signed a new employment contract with the Counter-Respondent II, Perth Glory,
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 9 of 12
valid as from 1 August 2019 until 31 May 2022, as a consequence of which he was
able to mitigate his damages in the amount of USD 142,804. Therefore, the
mitigated compensation amounts to USD 129,412.
25.
Subsequently, the Chamber referred to art. 17 par. 1 point ii. and established that,
since the termination was due to overdue payables, and given that the player was
excluded from the team and forced to train alone, events that the Chamber
acknowledged as facts, insofar the Respondent/Counter-Claimant failed to provide
any evidence to proof otherwise, the Chamber deemed that the player should also be
entitled to additional compensation in the amount of 6 monthly salaries, amounting
in total to USD 116,664.
26.
In addition, taking into account the Claimant/Counter-Respondent I’s request as well
as the constant practice of the Dispute Resolution Chamber in this regard, the DRC
decided that the Respondent/Counter-Claimant must pay to the Claimant/CounterRespondent I interest of 5% p.a. on the amount of compensation as of the date of
the claim, i.e. 18 October 2019, until the date of effective payment.
27.
Furthermore, taking into account the consideration under number II./3. above, the
DRC referred to par. 1 and 2 of art. 24bis 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.
28.
In this regard, the DRC pointed out 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
and for the maximum duration of three entire and consecutive registration periods.
29.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent/Counter-Claimat does not pay the amounts due to the Claimant/CounterRespondent I within 45 days as from the moment in which the Claimant/CounterRespondent I, following the notification of the present decision, communicates the
relevant bank details to the Respondent/Counter-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 effective on the
Respondent/Counter-Claimant in accordance with art. 24bis par. 2 and 4 of the
Regulations.
30.
Finally, 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. 24bis par. 3 of the Regulations.
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 10 of 12
31.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant/Counter-Respondent I is
rejected and by establishing that the claim of the Respondent/Counter-Claimant is
rejected.
***
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant/Counter-Respondent I, Osama Malik, is partially
accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Al-Batin Sports Club, is
rejected.
3.
The Respondent/Counter-Claimant has to pay the Claimant/Counter-Respondent I
USD 304,408 plus AED 5,270, plus interest at the rate of 5% p.a. as from 18
October 2019 until the date of effective payment.
4.
Any other requests for relief from the parties are rejected.
5.
The Claimant/Counter-Respondent I is directed to inform the Respondent/CounterClaimant, immediately and directly, preferably to the e-mail address as indicated
on the cover letter of the present decision, of the relevant bank account to which
the Respondent must pay the amounts mentioned under point 3. above.
6.
The Respondent/Counter-Claimant shall provide evidence of payment of the due
amounts in accordance with point 3. above to FIFA to the e-mail address
[email protected], duly translated into one of the official FIFA languages (English,
French, German, Spanish).
7.
In the event that the amounts plus interest due in accordance with point 3. above
are not paid by the Respondent/Counter-Claimant w ithin 45 day s as from the
notification by the Claimant/Counter-Respondent I of the relevant bank details to
the Respondent/Counter-Claimant, the Respondent/Counter-Claimant shall be
banned from registering any new players, either nationally or internationally, up
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 11 of 12
until the due amount is paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
8.
The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
9.
In the event that the aforementioned sums plus interest is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
*****
Note relating to the findings of the decis ion (art. 15 and 18 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber):
A request for the grounds of the decision must be received, in writing, w ithin 10 day s
of receipt of notification of the findings of the decision. Failure to do so within the
stated deadline will result in the decision becoming final and binding and the parties
being deemed to have waived their rights to file an appeal.
For the Dispute Resolution Chamber:
______________________________________
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Player Osama Malik, Australia / Al-Batin Sports Club, Saudi Arabia / Perth Glory FC, Australia
Page 12 of 12