Labour Disputes
Texto da decisão
REF FPSD-3277
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player Marko
Marin
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Mario Flores Chemor (Mexico), member
Stefano Sartori (Italy), member
CLAIMANT:
Marko Marin, Germany
Represented by Davor Radić
RESPONDENT:
Al Ahli FC, Saudi Arabia
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REF FPSD-3277
I.
Facts of the case
1.
On 5 January 2020, the German player, Marko Marin (hereinafter: the Claimant), and the
Saudi Arabian club, Al Ahli (hereinafter: the Respondent) concluded an employment contract
(hereinafter: “the contract”), valid from 5 January 2020 until 30 June 2022.
2.
In accordance with article 5 of the contract, the Respondent undertook to pay to the Claimant
the total remuneration of EUR 6,800,000 for the entire contract period, payable as follows:
“Advance Payment:
The amount of EUR 1,520,000 net payable as follows:
1. EUR 290,000 (Two hundred ninety EUR) shall be paid on 01/08/2020.
2. EUR 290,000 (Two hundred ninety EUR) shall be paid on 01/12/2020.
3. EUR 290,000 (Two hundred ninety EUR) shall be paid on 01/04/2021.
4. EUR 290,000 (Two hundred ninety EUR) shall be paid on 01/08/2021.
5. EUR 120,000 (One hundred twenty EUR) shall be paid on 01/12/2021.
6. EUR 120,000 (One hundred twenty EUR) shall be paid on 01/03/2022.
7. EUR 120,000 (One hundred twenty EUR) shall be paid on 01/05/2022.
The advance payments shall be deemed as earned pro-rata. Annual wage, and monthly salary:
1) The basic annual wage for season 2019/20 shall be EUR 1,200,000 (one million two
hundred thousand EUR), net of any fees and taxes which shall be paid in Six monthly and
equal instalments of EUR 200,000 each month, from 05.01.2020. to 30.06.2020. net of
any fees or taxes.
2) The basic annual wage for season 2020/21 shall be EUR 2,040,000 (two million Forty
thousand EUR), net of any fees and taxes which shall be paid in twelve monthly and equal
instalments of EUR 170,000 month, from 01.07.2020. to 30.06.2021. net of any fees or
taxes.
3) The basic annual wage for season 2021/22 shall be EUR 2,040,000 (two million Forty
thousand EUR), net of any fees and taxes which shall be paid in twelve monthly and equal
instalments of EUR 170,000 month, from 01.07.2021. to 30.06.2022. net of any fees or
taxes.”
3.
Additionally, art. 6 par. 2 of the contract states, “the player shall receive bonus in the amount
of EUR 25,000 for each 5 assist or goals scored by the player.”
4.
Art. 7 of the contract, inter alia, stipulates the following.
“Air Tickets:
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the Club shall provide the Player with a total of 04 (four) return business class tickets on The
Jeddah - home - Jeddah routes, for the use of The Player and his family. Unused tickets are
not earned onto the next season and will not ·be refunded.”
5.
On 23 December 2020, an agreement for the payment (hereinafter: “first agreement”) was
concluded between the Claimant and Respondent, relating to the settlement of the payments
of the first and second instalments of the advance payment, one payment from the bonus
scheme and payment for extra costs. In said agreement, the parties agreed to settle these
amounts as follows:
“ I.
II.
III.
IV.
6.
The Advance payment for the First installment in the amount of net € 290.000
shall be paid by the Club to the Player on 27 December 2020;
The Advance payment for the Second installment in the amount of net 290.000
shall be paid by the Club to the Player on 28 February 2021;
The Bonus for the 5 goals/assistants in the amount of net € 25.000 shall be paid
by the Club to the Player on 31 March 2021;
The Extra costs in the amount of net € 25.000 shall be paid by the Club to the
Player on 31 March 2021”
On 7 February 2021, the Claimant and Respondent concluded a loan agreement with FC Al
Raed for the loan of the Claimant from 7 February until 30 June 2021. On the same day the
Claimant and Respondent concluded an agreement (hereinafter: “second agreement”), by
means of which they agreed that during the loan period, the Respondent will pay to the
Claimant each month, inter alia, the following amounts:
- “monthly salary in the amount of EUR 70,000 net
- monthly bonus loan fee in the amount of EUR 50,000 net”
7.
Art. 7 of the second agreement, inter alia, stipulated the following:
“If Al Ahli FC don't pay on time to the Player any of monthly salary or bonus loan amount
during this loan period than parties agree that Al Ahli FC shall paid to the Player penalty fee
in the amount of the value of 10% of each amount what Al Ahli FC don't pay on time to
the Player”
8.
According to the Claimant, on 14 March 2020, due to the COVID-19 pandemic, all sport
activities in the Kingdom of Saudi Arabia, were suspended. Hence, the Respondent - on 14
April 2020 - gave the Claimant authorisation to travel to his home country, Germany.
9.
On 5 May 2020, the Respondent sent a letter to the Claimant together with a draft version
of a COVID-19 Pandemic Agreement relating to a proposed reduction of 50% of his salary,
which the Claimant had to respond to within 48 hours.
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10. On 6 May 2020, the Claimant informed the Respondent that it did not accept the proposed
“COVID-19 Pandemic Agreement” and that he was willing to start negotiations in good faith
to reach an agreement regarding payment of his income during the COVID-19 period.
11. However, the Respondent nevertheless proceeded to unilaterally subtract and reduce the
Claimant’s monthly salaries for the months of March to June 2020 without any negotiation,
consent, approval and/or permission of the Claimant.
12. On 2 November 2020, the Claimant sent a letter to the Respondent requesting its consent to
travel to Germany during the period between 8 and 12 November 2020, he indicated that
he will be back for training on 13 November 2020, which was granted by the Respondent.
13. On 6 December 2020, the Claimant sent a default notice to the Respondent in accordance
with the article 12bis relating to payment of a portion of his advance payment in the amount
of EUR 290,000, which was due on 8 August 2020.
14. On 16 December 2020, the Respondent sent a proposal to reschedule the payment of the
advance payment and on 17 December 2020, the Claimant made a counterproposal to the
Respondent. Accordingly, the parties concluded an agreement on 23 December 2020.
15. On 2 April 2021, the Claimant sent a default notice to the Respondent, requesting payment
of the amount of EUR 825,000 net, granting it a 10 days’ deadline to comply, however to no
avail.
16. On 25 June 2021, the Claimant sent another default notice letter to the Respondent,
requesting it to pay him the total amount of EUR 1,388,000 net corresponding to the
following:
(a) EUR 990,000 net as outstanding remuneration for advance of payments, salaries, bonus
and extra cost;
(b) EUR 48,000 net as penalty amount for non-payment on time in accordance with the
article (7) of the Agreement concluded on 7 February 2021;
(c) EUR 350,000 net as outstanding remuneration for salaries of March 2020, April 2020,
May 2020 and June 2020, which amount was unilaterally deducted from the Claimant’s
Employment contract on 5 January 2020.
17. On 25 June 2021, the Claimant requested a flight ticket from the Respondent for his return
to Saudi Arabia “because the preparations of Al Ahli first team supposed to start on 1 July
2021.”
18. On 30 June 2021, the Claimant purchased a flight ticket from Frankfurt (Germany) to Doha
(Qatar) and from Doha (Qatar) to Jeddah (Saudi Arabia) to arrive on time for the preparation
of Al Ahli’s first team.
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19. On 9 July 2021, the Respondent sent an email notice to the Claimant, unilaterally terminating
the contract with the Claimant pursuant to a “board decision”. It should be noted that the
date of the termination notice is 8 July 2021, however it was sent to the Claimant on 9 July
2021.
20. According to the Claimant, after the termination of the contract, he intended to solve the
matter amicably, however, he did not find an agreement with the Respondent to solve this
case in an amicable manner.
21. On 17 September 2021, the Claimant signed an employment contract with the Hungarian
club, FTC Ferencvarosi TC, valid from 18 September 2021 until 30 June 2022 for a monthly
salary of EUR 20,000 net.
II. Proceedings before FIFA
22. On 10 August 2021, the Claimant filed the claim at hand before FIFA.
a. Position of the Claimant
23. The requests for relief of the Claimant, were that the Respondent pay to the Claimant the
following amounts:
(a) Outstanding remuneration for 2020 in the total amount of EUR 350,000 as follows
EUR 50,000 net as outstanding remuneration, plus 5% p.a. as from 1 April 2020 until
the date of effective payment;
EUR 100,000 net as outstanding remuneration, plus 5% p.a. as from 1 May 2020 until
the date of effective payment;
EUR 100,000 net as outstanding remuneration, plus 5% p.a. as from 1 June 2020 until
the date of effective payment;
EUR 100,000 net as outstanding remuneration, plus 5% p.a. as from 1 July 2020 until
the date of effective payment.
(b) Outstanding remuneration in the total amount of EUR 1,153,870 for 2021 as follows
EUR 290,000 net as outstanding remuneration, plus 5% p.a. as from 1 March 2021 until
the date of effective payment;
EUR 25,000 net as outstanding remuneration, plus 5% p.a. as from 1 April 2021 until
the date of effective payment;
EUR 25,000 net as outstanding remuneration, plus 5% p.a. as from 1 April 2021 until
the date of effective payment;
EUR 290,000 net as outstanding remuneration, plus 5% p.a. as from 2 April 2021 until
the date of effective payment;
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EUR 70,000 net as outstanding remuneration, plus 5% p.a. as from 8 April 2021 until
the date of effective payment;
EUR 50,000 net as outstanding remuneration, plus 5% p.a. as from 8 April 2021 until
the date of effective payment;
EUR 70,000 net as outstanding remuneration, plus 5% p.a. as from 8 May 2021 until the
date of effective payment;
EUR 50,000 net as outstanding remuneration, plus 5% p.a. as from 8 May 2021 until the
date of effective payment;
EUR 70,000 net as outstanding remuneration, plus 5% p.a. as from 8 June 2021 until
the date of effective payment;
EUR 50,000 net as outstanding remuneration, plus 5% p.a. as from 8 June 2021 until
the date of effective payment;
EUR 70,000 net as outstanding remuneration, plus 5% p.a. as from 8 July 2021 until the
date of effective payment;
EUR 50,000 net as outstanding remuneration, plus 5% p.a. as from 8 July 2021 until the
date of effective payment;
EUR 43,870 net as outstanding remuneration, plus 5% p.a. as from 9 July 2021 until the
date of effective payment.
(c) EUR 60,000 net as penalty fee, plus 5% p.a. as from 8 June 2021 until the date of
effective payment
(d) EUR 1,848.99 net as flight tickets, plus 5% p.a. as from 9 July 2021 until the date of
effective payment; and
(e) EUR 2,646,130 net as compensation for breach of contract, plus 5% interest p.a. as from
9 July 2021 until the date of effective payment.
b. Position of the Respondent
24. In its reply to the claim, the Respondent indicated that until March 2021, the Claimant
received all his salary and mentioned that as a result from “March 2021 until the termination
of the contract on 8 July 2021 we found that that the Claimant is entitled only for the amount
of EUR 1,393.870.”
25. Concerning the Claimant’s entitlement to compensation for the termination of the contract,
the Respondent mentioned that to determine the said amount the FIFA regulations should be
applied.
26. According to the Respondent the Claimant is entitled to the outstanding remuneration in the
total amount of EUR 1,393,870, corresponding to the following:
part of salary of July 2021 of EUR 126,130
salary of August 2021 of EUR 170,000
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salary of September 2021 of EUR 170,000
salary of October 2021 of EUR 170,000
salary of November 2021 of EUR 170,000
salary of December 2021 of EUR 170,000
salary of January 2022 of EUR 170,000
salary of February 2022 of EUR 170,000
salary of March 2022 of EUR 170,000
salary of April 2022 of EUR 170,000
salary of May 2022 of EUR 170,000
salary of June 2022 of EUR 170,000
two advance payments of EUR 120,000 each.
27. The Respondent found that as a result of the termination of the contract, the Claimant is only
entitled to compensation for breach of contract in the amount of EUR 2,356,130.
28. Consequently, the outstanding remuneration and compensation for breach of contract which
must be paid to the Claimant by the Respondent is – according to the Respondent - EUR
3,750,000.
29. In its reply the Respondent mentioned the following points:
(a) COVID-19 is a case of majeure force in Saudi Arabia
The Respondent stipulated, “it is established that COVID-19 has been qualified in
Saudi Arabia as a case of force majeure and at least has the same effects than the
force majeure”.
(b) The player has agreed with the salary reduction proposed by the club:
The Respondent it discussed the salary reduction with all players and that the
Claimant “has expressed by phone to the club’s manager his acceptance of said
temporary reduction given the seriousness of the situation.”
The Respondent further mentioned that the Claimant never objected against the
following:
*
*
*
The club’s circular sent on 14 April 2021.
The reduction agreement sent by email on 17 April 2021.
The reminder of the agreement sent on 5 May 2021.
Moreover, the Respondent confirmed, “even if it is not recognized by the player, the
decision was taken in consideration of the financial situation of the club and in
accordance with the criteria required by FIFA and with respect to Saudi labor
regulations.”
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(c) The effects of the pandemic on the club's economic situation
On 15 March 2020, all sporting activities in Saudi Arabia were been suspended, in
addition the Saudi Minister of Finance declared that the budget allocated to sport would
be reduced. Accordingly, the aforesaid changes had an impact on the revenue of the
Respondent.
(d) National law
The Respondent indicated that that the Minister of Human Resources and Social
Development on 6 April 2020 in accordance with “08/13/1441 made an amendment to
the labor. Providing that during the following 6 months the COVID-19 pandemic, salaries
and financial benefits will be reduced by 40%.”
(e) Preliminary negotiations:
According to the Respondent, it tried on several occasions mainly by phone to discuss
the salary reductions with the Claimant and additionally in accordance with numerous
exchanges between the parties.
Only after these attempts, the Respondent confirmed that it made a unilateral decision
to reduce the Claimant’s salary by 50%.
(f)
A reasonable and proportional decrease:
In this context, the Respondent is of the view that the reduction to the Claimant’s salary
during the period 15 March to June 2020 “is proportional to the financial situation of
the player which will not be seriously affected since the reduction was temporary (3
months and 15 days), and only represents 11,2 % of the annual salary value and
especially that the player would receive the net salary of all charges while keeping the
total benefit of other financial benefits such as car, accommodation and insurance.”
30. In conclusion, the Respondent stated that the reduction which was applied was made in
accordance with FIFA “criterions and taking into account the situation of the club and the
employees.”
31. In its request for relief, the Respondent requested that the DRC:
(a) “Accept partially the request of the Claimant by ordaining the respondent to pay only
EUR 3,750,000 with only a annual interest of 5%;
(b) Reject the request of the claimant regarding the payment of the amount of deduction
due to Covid-19; and
(c) Reject the request of the claimant regarding the payment penalty”.
c. Additional position of the Claimant
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32. On 17 November, the Claimant was requested to provide additional comments on the
payment documents submitted by the Respondent and accordingly has confirmed that the
Respondent “is wrong in its answer of 16 September 2021 that the outstanding remuneration
what Respondent owed to the Claimant is the amount of EUR 1,393,870 net because the
Claimant in this current submission is explain that the outstanding remuneration what
Respondent owes to the Claimant is the amount of EUR 1,557,847.99 net + interest as we
have explain in detail in our Request for Relief in the Claim on 10 August 2021.“
33. Additionally, the Claimant indicated that the Respondent’s calculation of compensation for
breach of contract is also incorrect as the total amount which must be paid to the Claimant
is the amount of EUR 2,356,130 net. “In the paragraph 153 of the Claim the Claimant
explained in detail way that in the period from 8 July 2021 until 30 June 2022 he should
receive the amount of EUR 2,646,130 net.”
34. In conclusion the Claimant requested that the Respondent, pay to the Claimant the following
amounts:
“EUR 48,837 net as outstanding remuneration plus 5% p.a. as from 1 April 2020 until
the date of effective payment;
EUR 97,764 net as outstanding remuneration plus 5% p.a. as from 1 May 2020 until the
date of effective payment;
EUR 97,764 net as outstanding remuneration plus 5% p.a. as from 1 June 2020 until the
date of effective payment;
EUR 97,764 net as outstanding remuneration plus 5% p.a. as from 1 July 2020 until the
date of effective payment;
EUR 290,000 net as outstanding remuneration plus 5% p.a. as from 1 March 2021 until
the date of effective payment;
EUR 25,000 net as outstanding remuneration plus 5% p.a. as from 1 April 2021 until the
date of effective payment;
EUR 25,000 net as outstanding remuneration plus 5% p.a. as from 1 April 2021 until the
date of effective payment;
EUR 290,000 net as outstanding remuneration plus 5% p.a. as from 2 April 2021 until
the date of effective payment;
EUR 70,000 net as outstanding remuneration plus 5% p.a. as from 8 April 2021 until the
date of effective payment;
EUR 50,000 net as outstanding remuneration plus 5% p.a. as from 8 April 2021 until the
date of effective payment;
EUR 70,000 net as outstanding remuneration plus 5% p.a. as from 8 May 2021 until the
date of effective payment;
EUR 50,000 net as outstanding remuneration plus 5% p.a. as from 8 May 2021 until the
date of effective payment;
EUR 70,000 net as outstanding remuneration plus 5% p.a. as from 8 June 2021 until the
date of effective payment;
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EUR 50,000 net as outstanding remuneration plus 5% p.a. as from 8 June 2021 until the
date of effective payment;
EUR 70,000 net as outstanding remuneration plus 5% p.a. as from 8 July 2021 until the
date of effective payment;
EUR 50,000 net as outstanding remuneration plus 5% p.a. as from 8 July 2021 until the
date of effective payment;
EUR 60,000 net as penalty fee plus 5% p.a. as from 8 June 2021 until the date of effective
payment;
EUR 43,870 net as outstanding remuneration plus 5% p.a. as from 9 July 2021 until the
date of effective payment;
EUR 1,848.99 net as flight tickets plus 5% p.a. as from 9 July 2021 until the date of
effective payment;
EUR 2,646,130 net as compensation for breach of contract plus 5% as from 9 July 2021
until the date of effective payment.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
35. 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 August 2021 and submitted for decision
on 25 November 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.
36. 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 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 German player and
a Saudi Arabian club.
37. 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 August 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
38. 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
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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
39. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
40. 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 Respondent could
validly reduce the Claimant’s remuneration and whether the Respondent had just cause to
terminate the contract.
41. The Chamber noted that the Claimant mentioned that the Respondent failed to pay part of
his remuneration for the period between March 2020 until 8 July 2021, i.e. the date of
termination of the employment contract, which remuneration was agreed to in his
employment contract and the subsequent first and second agreement concluded between
the parties.
42. Additionally, the Chamber took due note of the Respondent’s argument regarding the effects
of the COVID-19 pandemic, in this regard the Chamber remarked that the Respondent, in its
reply confirmed, that the Claimant was entitled to the remuneration as indicated for the
aforesaid period but disagreed on the amount payable to the Claimant, the Respondent
argued that it was allowed to reduce the remuneration of the Claimant between the period
15 March 2020 until June 2020 based on the impact of the COVID-19 pandemic, which was
declared a case of force majeure in Saudi Arabia.
43. The Chamber – first of all - observed that the Claimant rejected the unilateral variation of
salaries made by the Respondent on the basis that he never gave his consent and that the
variation was unilaterally applied by the Respondent without any negotiation between the
parties and that the Respondent maintained, inter alia, that the salary reduction was agreed
to by the Claimant and that it was performed in accordance with national law and FIFA´s
guidelines.
44. Having said that, the DRC referred to the fact that, in light of the worldwide COVID-19
outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing
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appropriate guidance and recommendations to member associations and their stakeholders,
to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any
response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued
an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about
the most relevant questions in connection with the regulatory consequences of the COVID19 outbreak and identifies solutions for new regulatory matters.
45. With this framework in mind, the Chamber noted that, based on the contents of the FIFA
COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that, the COVID-19
outbreak as a force majeure situation in any specific country or territory, or that any specific
employment or transfer agreement was impacted by the concept of force majeure. In other
words, in any given dispute, it is for a party invoking force majeure to establish the existence
of said event under the applicable law/rules as well as the consequences that derive in
connection thereto. The analysis of whether a situation of force majeure existed has to be
considered on a case by-case basis, taking into account all the relevant circumstances.
46. According to the FIFA COVID-19 Guidelines, unilateral decisions to vary the terms of an
agreement are allowed if they are made in line with national law or permissible within the
CBA structures. Thus, if the parties involved cannot reach an amicable settlement, or the issue
is not addressed in national law and CBA’s with a players’ union are not an option, a variation
to the contract can only be allowed if it is made in good faith, are reasonable and
proportionate.
47. In the matter at hand, the DRC noted that it appears that the Respondent justified the
unilateral reduction of the Claimant’s remuneration on the basis of certain resolutions issued
by the Minister of Human Resources and Social Development and argued that the Saudi
Arabian national law was applicable to the matter at hand, however the Chamber noted that
it failed to prove that such resolutions resulted from negotiations between employers and
employees. As such, the DRC concluded that the Respondent had not sufficiently
demonstrated that the variation to the Claimant’s contract was made in line with national .
legislation, moreover, it seems that the parties did not reach an amicable settlement and as
such it appears that the Respondent unilaterally varied the terms of the employment contract.
48. The DRC further observed that on 8 July 2021, the Respondent unilaterally terminated the
employment contract with the Claimant pursuant to a “board decision” without prior notice
to the Claimant. In this regard, the Chamber remarked that in accordance with wellestablished jurisprudence of the Chamber, only a breach or misconduct, which is of a certain
severity, justifies the termination of a contract without notice. The members of the Chamber
therefore came to the conclusion that that the termination of the contract by the Respondent
was made without just cause and that the Claimant is entitled to his outstanding
remuneration and compensation for breach of contract.
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49. The Chamber further noted that the Respondent submitted documents, reflecting salary
payments made by the Respondent to the Claimant. It appears however that the majority of
the documents provided, relate to salary payments which do not form part of this claim;
except for the following payments the Chamber took into account, which receipt thereof has
been confirmed by the Claimant for the period between March and June 2020:
EUR 151,163 – on 22 June 2020 for March 2020 salary;
EUR 102,326 – on 29 June 2020 for April 2020 salary;
EUR 102,326 – on 22 June 2020 for May 2020 salary;
EUR 102,326 – on 17 August 2020 for June 2020 salary.
50. Bearing in mind the above considerations, the Chamber concluded that the Respondent could
not validly justify the unilateral variation of the contract, and therefore it shall remunerate the
Claimant as agreed in the contract, moreover that the Respondent had terminated the
contract – on 8 July 2021 - without just cause and it is to be held liable for the consequences
of such termination. As a result, the Claimant is entitled to his outstanding remuneration and
compensation for breach of contract.
ii. Consequences
51. Having stated the above, the members of the Chamber concurred that the Respondent must
fulfil its obligations in accordance with the general legal principle of “pacta sunt servanda”.
52. Consequently, the DRC decided that the Respondent is liable to pay to the Claimant his
outstanding remuneration, for the period between 15 March to June 2020 in the total
amount of EUR 341,859, corresponding to the following:
EUR 48,837 net relating to the balance of his salary for March 2020
EUR 97,674 net relating to balance of the salary of April 2020
EUR 97,674 net relating to balance of the salary of May 2020
EUR 97,674 net relating to balance of the salary of June 2020
53. Furthermore, in accordance with the first agreement concluded between the parties, the
Claimant only received a payment in the amount of EUR 290,000, which was confirmed by
the Respondent. Additionally, in accordance with the second agreement concluded between
the parties, the Claimant only received payment in the amount of EUR 120,000 during
February 2021 (monthly salary and bonus loan amount), as the parties had contractual
agreements in place, the DRC decided that the Respondent is liable to pay to the to the
Claimant his outstanding remuneration in respect hereof in the total amount of EUR
1,153,870 net, corresponding to the following:
EUR 290,000 net as advance payment for the second instalment payable on 28 February
2021
EUR 25,000 net as bonus payable on 31 March 2021
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EUR 25,000 net as extra cost payable on 31 March 2021
EUR 290,000 net as advance payment for the second instalment payable on 1 April
2021
EUR 70,000 net as monthly salary of March 2021 payable by 7 April 2021
EUR 50,000 net as the bonus loan amount for March 2021 payable by 7 April 2021
EUR 70,000 net as monthly salary of April 2021 payable by 7 May 2021
EUR 50,000 net as the bonus loan amount for of April 2021 payable by 7 May 2021
EUR 70,000 net as monthly salary of May 2021 payable by 7 June 2021
EUR 50,000 net as the bonus loan amount for May 2021 payable by 7 June 2021
EUR 70,000 net as monthly salary of June 2021 payable by 7 July 2021
EUR 50,000 net as the bonus loan amount for June 2021 payable by 7 July 2021
EUR 43,870 net as part salary for July 2021 (8 days of July)
54. Furthermore, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amounts
as from the respective due dates until the date of effective payment.
55. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for breach
of contract in addition to any outstanding salaries on the basis of the relevant employment
contract.
56. In this context, the Chamber outlined that, in accordance with the said provision, 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 under the existing contract and/or the
new contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
57. In application of the relevant provision, the Chamber held that it first had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a 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.
58. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of the
employment contract on 8 July 2021, the contract would run for a further of period from 9
July 2021 until 30 June 2022.
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59. Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to EUR 2,646,130 net consisting
of EUR 170,000 monthly remuneration x 11 months, plus EUR 126,130 (part salary July 2021),
plus advance payments in the amount of EUR 650,000 and that such amount shall serve as
the basis for the final determination of the amount of compensation for breach of contract.
60. In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant informed FIFA that on
17 September 2021, he had signed a new contract with the club, FTC Ferencvarosi TC valid
as from 18 September 2021 until 30 June 2022. According to the said contract, he was
entitled to a monthly salary of EUR 20,000 net. For the overlapping period, this corresponds
to EUR 188,000 net (EUR 8,000 net for 12 days of September 2021 and EUR 180,000 net for
9 months).
61. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player – subject to him finding new employment by means of which he
could mitigate his damages - is entitled to an additional compensation of three
monthly salaries, subject to the early termination of the contract being due to overdue
payables. In case of egregious circumstances, the additional compensation may be increased
up to a maximum of six-monthly salaries, whereby the overall compensation may never
exceed the residual value of the prematurely terminated contract.
62. With the above in mind, the DRC decided not to award to the Claimant additional
compensation corresponding to three monthly salaries, as the Respondent terminated the
employment relationship.
63. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of EUR
2,458,130 net to the Claimant as compensation for breach of contract without just cause,
which is considered by the DRC to be a reasonable and justified amount as compensation.
64. Taking into consideration the Claimant’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award to the Claimant interest on said
compensation at the rate of 5% p.a. as of 10 August 2021 until the date of effective payment.
65. The Chamber referred to the penalty amount of EUR 60,000, agreed to in article 7 of the
second agreement and deemed said penalty is not disproportionate and/or excessive,
therefore the Chamber decided that the Respondent should pay to the Claimant the penalty
of EUR 60,000.
66. Furthermore, with respect to the reimbursement of the flight tickets as claimed by the
Claimant, the DRC established that in addition to the documentary evidence submitted by
the Claimant, the Claimant is contractually entitled to the reimbursement of the said flight
expenses, on this basis the amount of EUR 1,848.99 is to be awarded to the Claimant.
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iii. Compliance with monetary decisions
67. 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.
68. 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.
69. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
70. 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.
71. 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. 8 of
the Regulations.
d. Costs
72. 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.
73. 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.
74. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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REF FPSD-3277
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Marko Marin, is partially accepted.
2.
The Respondent, Al Ahli FC, has to pay to the Claimant, the following amount:
(a)
-
EUR 1,495,729 net as outstanding remuneration, plus 5% interest p.a. as from the
respective due dates until the date of effective payment as follows:
on the amount of EUR 48,837 net as from 1 April 2020
on the amount of EUR 97,674 net as from 1 May 2020
on the amount of EUR 97,674 net as from 1 June 2020
on the amount of EUR 97,674 net as from 1 July 2020
on the amount of EUR 290,000 net as from 1 March 2020
on the amount of EUR 25,000 net as from 1 April 2021
on the amount of EUR 25,000 net as from 1 April 2021
on the amount of EUR 290,000 net as from 2 April 2021
on the amount of EUR 70,000 net as from 8 April 2021
on the amount of EUR 50,000 net as from 8 April 2021
on the amount of EUR 70,000 net as from 8 May 2021
on the amount of EUR 50,000 net as from 8 May 2021
on the amount of EUR 70,000 net as from 8 June 2021
on the amount of EUR 50,000 net as from 8 June 2021
on the amount of EUR 70,000 net as from 8 July 2021
on the amount of EUR 50,000 net as from 8 July 2021
on the amount of EUR 43,870 net as from 9 July 2021
(b)
EUR 60,000 as a penalty;
(c)
EUR 1,848.99 net as flight tickets, plus 5% p.a. as from 9 July 2021 until date of
effective payment; and
(d)
EUR 2,458,130 net as compensation for breach of contract, plus 5% interest p.a.
from 10 August 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
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REF FPSD-3277
▪
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-3277
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
Fédération Internationale de Football Association
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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