Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 21 February 2020
in the following composition:
Clifford Hendel (US A), Deputy Chairman
Tom is lav Kas alo (Croatia), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Gary Mendes Rodrigues , Netherlands
represented by Mr Oktay Düzgün and Mr Jurriaan Zee
as “Claimant”
against the club
Ittihad FC, Saudi Arabia
represented by Mr Jan Kleiner and Mr Francisco Rapp
as “Respondent”
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 5 January 2019, the Dutch player, Garry Mendes Rodrigues (hereinafter: the
Claimant or the player), the Saudi Arabian club, Al Ittihad (hereinafter: the
Respondent or the club) concluded an employment contract (hereinafter: the
contract) valid as of 7 January 2019 until 30 June 2023.
2.
On 12 July 2019, the parties signed an amendment to the contract (hereinafter:
amendment) due to the fact that the player went on loan to the Turkish club,
Fenerbahçe until 31 May 2021.
3.
Said amendment reads, inter alia, as follows: “[The player’s] obligation to provide his
services as professional football player to [the club] shall be suspended for the
duration of the loan period and the [the player] shall be allowed to join the team of
Fenerbahçe. [The club’s] obligation to pay the salary to the Player shall be reduced as
stipulated in this agreement. All other provisions of the employment contract
between [the club] and [the player] shall remain in effect […]”.
4.
According to this amendment, the Respondent undertook to pay to the Claimant the
following salaries:
- EUR 850,000 on 15 July 2019;
- EUR 127,083.33 as monthly salary in 12 instalments between July 2019 and June
2020, due at the end of each month;
- EUR 850,000 on 15 July 2020;
- EUR 127,083.33 as monthly salary in 12 instalments between July 2020 and June
2021, due at the end of each month.
5.
Moreover, the amendment established that: “Ittihad shall provide a car to the Player
for a value corresponding to a monthly cost for Ittihad of EUR 2,000.00”.
6.
After the Respondent failed to comply with its payment obligations agreed upon in
the amendment, the Claimant sent several default notices to the club.
7.
On 25 September 2019, the Claimant lodged a claim against the Respondent in front
of FIFA and requested payment of “unpaid salaries up to September 2019” (i.e. EUR
1,257,988.33) as well as “payments for the remainder of the contract period” (i.e.
EUR 13,135,443.40). Furthermore, the Claimant requested costs for “legal assistance
(estimated) EUR 100,000.”
8.
In his initial claim, the player stated that he “prefers not to annul his employment
agreement, but he does request to sanction Ittihad FC until all outstanding amounts
have been paid”. In a later submission, after being requested to complete his claim,
the player maintained that the club made clear that it would not pay any amounts,
so that he “is compelled to also claim his future payments”.
Player Gary Mendes Rodrigues, Netherlands / Club Ittihad FC, Saudi Arabia
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9.
The Respondent failed to submit a reply to the claim within the stipulated time-limit,
but remitted a payment of EUR 1,257,988.33 to the player after the investigation
phase was already closed.
10.
The player acknowledged receipt of a payment in the amount of EUR 1,257,888.33,
where EUR 100 were deducted by the bank as costs, and insisted that “this is not the
amount owed”.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber took note that the present matter was submitted to FIFA on 25
September 2019. Consequently, the DRC concluded that 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 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition January
2020) the Dispute Resolution Chamber is competent to deal with the matter at stake,
which concerns a dispute with an international dimension between a Dutch player
and a Saudi Arabian club in relation to an employment relationship.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition January
2020), and considering that the present claim was lodged on 25 September 2019, the
June 2019 edition of said 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, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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.
Player Gary Mendes Rodrigues, Netherlands / Club Ittihad FC, Saudi Arabia
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5.
Having said that, the members of the Chamber acknowledged that, on 5 January
2019, the parties entered into a contractual relationship valid as of 7 January 2019
until 30 June 2013. Furthermore, the DRC noted that due to the loan of the player to
a different club, the initial contract was amended on 12 July 2019 and that due to
this amendment, the Respondent, inter alia, undertook to pay the player a monthly
salary of EUR 127,083.33.
6.
On account of the above, the Chamber noted that the Claimant lodged a claim
against the Respondent requesting outstanding remuneration in connection with the
amended contract. Furthermore, the DRC observed that the Claimant held that he
“prefers not to annul his employment agreement, but he does request to sanction
Ittihad FC until all outstanding amounts have been paid”. Moreover, the members of
the Chamber noted that he also claimed as well as “future payments” since “it was
clear that [the Respondent] would not pay any amounts”.
7. Subsequently, the DRC observed that the Respondent, in spite of having been
invited to do so, had, for its part, failed to present its response to the claim of the
Claimant within the relevant time limit set by FIFA, i.e. 30 October 2019. In fact, the
reply of the Respondent was only received on 6 November 2019. As a result, bearing
in mind the Chamber’s constant jurisprudence in this regard and in application of
art. 9 par. 3 of the Procedural Rules, the Chamber decided not to take into account
the reply of the Respondent and established that, in accordance with the
aforementioned provision, it shall take a decision on the basis of those documents
on file that were provided prior to the deadline set by FIFA, in casu, on the
statements and documents presented by the Claimant.
8. Notwithstanding the above, the members of the Chamber noted that the
Respondent remitted a payment of EUR 1,257,988.33 to the Claimant after the
investigation phase was already closed.
9. Taking into account the documentation presented by the Claimant in support of his
petition, the DRC concluded that the Claimant had substantiated his claim
pertaining to outstanding remuneration with sufficient documentary evidence. Due
to the fact that the player did not terminate the contract with the Respondent this
matter concerns outstanding remuneration only. Therefore no “future payments”
were taken into account by the Chamber as the employment relationship was still in
force.
10. Taking into account the payment of EUR 1,257,988.33, acknowledged by the player,
it appears that the players first part of the claim, concerning remuneration due until
and including September 2019, was fulfilled. In this regard, the DRC pointed out that
the Respondent has to reimburse the Claimant for the banking costs of EUR 100
occurred during said transaction.
Player Gary Mendes Rodrigues, Netherlands / Club Ittihad FC, Saudi Arabia
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11. Furthermore, the DRC acknowledged that the Claimant, as per amended contract,
shall be entitled to the amount of EUR 516,332, corresponding to his salaries as of
October 2019 until January 2020 (i.e. 4x EUR 127,083) as well as the car costs of EUR
2,000 per month, i.e. EUR 8,000.
12. Consequently, the DRC decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of EUR 516,432.
13. In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR
516,432 as from the respective due dates.
14. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and
the Chamber’s respective longstanding jurisprudence in this regard.
15. The DRC concluded its deliberations by rejecting any further claim of the Claimant.
Player Gary Mendes Rodrigues, Netherlands / Club Ittihad FC, Saudi Arabia
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III.
Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Gary Mendes Rodrigues, is partially accepted.
2. The Respondent, Ittihad FC, has to pay to the Claimant the amount of EUR 516,432 as
outstanding remuneration, plus interest until the date of effective payment as follows:
a. 5% p.a. as of 14 November 2019 on the amount of EUR 100;
b. 5% p.a. as of 1 November 2019 on the amount of EUR 129,083;
c. 5% p.a. as of 1 December 2019 on the amount of EUR 129,083;
d. 5% p.a. as of 1 January 2020 on the amount of EUR 129,083;
e. 5% p.a. as of 1 February 2020 on the amount of EUR 129,083.
3. Any further claim of the Claimant is rejected.
4. The Claimant is directed to inform the Respondent, 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 amount
mentioned under point 2. above.
5. The Respondent shall provide evidence of payment of the due amount in accordance
with point 2 above to FIFA to the e-mail address [email protected], duly translated, if
need be, into one of the official FIFA languages (English, French, German, Spanish).
6. In the event that the amounts due plus interest in accordance with point 2 above are
not paid by the Respondent w ithin 45 day s as from the notification by the Claimant
of the relevant bank details to the Respondent, the Respondent shall be banned from
registering any new players, either nationally or internationally, up 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).
7. The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
Player Gary Mendes Rodrigues, Netherlands / Club Ittihad FC, Saudi Arabia
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8. In the event that the aforementioned sum 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 related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Gary Mendes Rodrigues, Netherlands / Club Ittihad FC, Saudi Arabia
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