Dispute Resolution Chamber
Texto da decisão
REF 21-00069
Decision of the
Dispute Resolution Chamber
passed on 24 June 2021
regarding an employment-related dispute concerning the player Ahmed Musa
COMPOSITION:
Geoff Thompson (England), Chairman
Pavel Pivovarov (Russia), member
Michelle Colucci (Italy), member
CLAIMANT:
Ahmed Musa, Nigeria
Represented by Jan Schweele
RESPONDENT:
Al Nassr, Saudi Arabia
Represented by Daniel Munoz
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I.
FACTS OF THE CASE
1.
On 2 August 2018, the Nigerian player, Ahmed Musa (hereinafter: the Claimant or the
Player) and the Saudi club, Al Nassr Saudi (hereinafter: the Respondent or the Club) (jointly
referred to as: the Parties) signed a "Contract for Football Professional Player" valid as from
2 August 2018 until 1 August 2022 “or the day of the last official game of the Club in the
relevant season” (hereinafter: the Contract).
2.
The Player’s remuneration under the Contract was established in net amounts as follows:
a. “Season 2018/2019 – EUR 6,500,000, to be paid in (i) 3 monthly salaries of EUR
541,667, equaling a total of EUR 1,625,000, payable within 48h from the signing of
the Employment contract; and (ii) 9 monthly salaries of EUR 541,667, payable as from
September 2018 until June 2019;
b. Season 2019/2020 – EUR 7,000,000, to be paid in (i) 3 monthly salaries of EUR
583,334, equaling a total of EUR 1,750,000, payable before 05 August 2019; and (ii)
9 monthly salaries of EUR 583,334, payable as from September 2019 until June 2020;
c. Season 2020/2021 – EUR 6,500,000, to be paid in (i) 3 monthly salaries of EUR
541,667, equaling a total of EUR 1,625,000, payable before 05 August 2020; and (ii)
9 monthly salaries of EUR 541,667, payable as from September 2020 until June 2021;
d. Season 2021/2022 - EUR 7,000,000, to be paid in (i) 3 monthly salaries of EUR 583,334,
equaling a total of EUR 1,750,000, payable before 05 August 2020; and (ii) 9 monthly
salaries of EUR 583,334, payable as from September 2021 until June 2022.”
3.
On 14 March 2020, the Saudi Arabian Football Federation (SAFF) ordered the suspension
of the competitions from 15 March 2020 “until further notice” due to Covid-19.
4.
On the 14 April 2020, the parties signed “Amendment to the Employment Contract”
(hereinafter: the Amendment) due to the situation arising out of the Covid-19 pandemic.
5.
Clause 2.2. of the Amendment states as follows:
2.2 PERIOD OF SUSPENSION
For the purpose of the present contract, the period of suspension shall be considered from
15 March 2020 till the date in which the official competitions of the 2019/2020 season are
officially resumed (hereinafter, “PERIOD OF SUSPENSION”). During the PERIOD OF
SUSPENSION, the PLAYER will have the obligation to return to the Kingdom of Saudi Arabia
upon the first request of the CLUB and always 14 days prior to the first training of the CLUB.
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The PARTIES expressly and irrevocably agree to reduce in a 50% (Fifty Percent) the fix
remuneration of the PLAYER provided in the EMPLOYMENT CONTACT for the 2019/2020
season during the PERIOD OF SUSPENSION.
6.
On 12 June 2020, the SAFF confirmed that competitions were going to restart on 4 August
2020 and training was allowed to take place as of 21 June 2020.
7.
On 25 October 2020, the parties signed a “Settlement Agreement” (hereinafter: the
Settlement Agreement) in order to terminate the employment relationship.
8.
Clause 3 of the Settlement Agreement reads as follows (quoted verbatim):
“3. PAYMENT BY THE CLUB
3.1 The CLUB shall, as full, complete and final settlement under the EMPLOYMENT
CONTRACT, pay to the PLAYER (i) the amount of EUR 3,000,000.00 net of taxes plus (ii) the
overdue monthly salaries and bonuses under the EMPLOYMENT CONTRACT until the
EFFECTIVE DATE of the present SETTLEMENT AGREEMENT (i.e, the date of termination of
the EMPLOYMENT CONTRACT) (hereinafter, “SETTLEMENT AMOUNT”), in accordance with
the provisions of clause 3.2 of this SETTLEMENT AGREEMENT.
3.2. The full SETTLEMENT AMOUNT shall be paid by the CLUB to the PLAYER as follows:
(i) The amount of EUR 3,000,000.00net of taxes to be cashed on 4 November 2020 by
means of bank cheque, which has been hand delivered to the PLAYER today, 25 October
2020, with reference number 00004463;
(ii) The overdue monthly salaries and bonuses under the EMPLOYMENT CONTRACT until
the EFFECTIVE DATE of the present SETTLEMENT AGREEMENT shall be divided and paid in
four equal instalments as follows:
-First instalment on 25 November 2020
-Second instalment on 25 December 2020
-Third instalment 25 January 2021
-Fourth instalment 25 February 2021
3.3 The SETTLEMENT AMOUNT must be paid by bank transfer to the bank account that the
PLAYER notifies to the CLUB in writing.”
9.
Clause 5 of the Settlement Agreement reads as follows (quoted verbatim):
“5. PENALTY
In the event the CLUB does not comply within the agreed deadline with the payment of (i)
EUR 3,000,000.00 and/or of any instalment of the overdue salaries provided in clause 3 .2
(ii) above, it shall be deemed as a breach of contract by the CLUB and the PLAYER shall have
the right to claim the difference between the amount paid by the CLUB under the present
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SETTLEMENT AGREEMENT and the residual value of the EMPLOYMENT CONTRACT plus
penalty in the amount of EUR 150,000.”
10.
On 26 November 2020, the Respondent paid the amount of EUR 332,674 to the Claimant.
Equally, on 30 December 2020, the Respondent paid the amount of EUR 332,674 to the
Claimant. The Claimant contests however that these payments were properly made.
II.
PROCEEDINGS BEFORE FIFA
11.
On 31 December 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
The claim of the Claimant
12.
According to the Claimant, the Respondent breached the Settlement Agreement and hence
the contractual provisions therein should apply.
13.
Particularly, the Claimant states that “as the Club did not comply with the agreed deadlines,
in accordance with Clause 5 of the Agreement, a total amount of EUR 14,807,946.67 is
due to the Player as contractual penalty for breach of contract”, calculated as follows:
- The amount of EUR 6,219,774.90 as outstanding amounts under the Contract, based on
the subsequent calculation:
- Season 2018/19: EUR 500,000 (bonus for Asian Champions League qualification)
- Season 2019/20: EUR 3,657,946.67, based on:
- August 2019: EUR 1,750,000 (3 monthly salaries);
- October 2019: EUR 583,334 (monthly salary);
- November 2019: EUR 583,334 (monthly salary) December 2019: EUR 583,334
(monthly salary);
- January 2020: EUR 583,334 (monthly salary);
- February 2020: EUR 583,334 (monthly salary);
- March 2020: EUR 437,500 (25% reduction as of Amendment);
- April 2020: EUR 291,667 (50% reduction as of Amendment);
- May 2020: EUR 291,667 (50% reduction as of Amendment);
- June 2020: EUR 291,667 (50% reduction as of Amendment).
14.
The Claimant submits that the total amount of outstanding remuneration due to the Player
at the time of the Settlement Agreement was EUR 6,219,774.90, whereas each of the four
equal instalments under the Settlement Agreement must have been of EUR 1,554,943.72.
15.
Based on the above, the Claimant provides the following calculation:
a. Outstanding amount by 25 October 2020: + EUR 6,219,774.90;
b. Deduction of bank cheque with reference number 00004463: - EUR 3,000,000;
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c.
d.
e.
f.
16.
Salaries – season 2020/21 (26 October 2020 – 30 June 2021): + EUR 4,438,171.77;
Salaries – full season 2021/22: + EUR 7,000,000;
Penalty: + EUR 150,000;
TOTAL: EUR 14,807,946.67.
The Claimant’s requests for relief were the following:
“requests that the FIFA Dispute Resolution Chamber accepts the present claim and issues
an award in its favor, sentencing the Respondent to:
a. Pay to the Claimant compensation for breach of contract and/or outstanding
remuneration in the amount of EUR 14,807,946.67, pursuant to the "Settlement
Agreement Agreement", plus interest of 5% p.a., as of 25 November 2020, until the date
of effective payment, on the grounds described herein.
b. Subsidiarily, pay to the Claimant compensation for breach of contract and/or outstanding
remuneration in the amount of EUR 14,142,598.67, pursuant to the "Settlement
Agreement Agreement", plus interest of 5% p.a., as of 25 November 2020, until the date
of effective payment, on the grounds described herein;
c. Finally, the Claimant requests that the Respondent is sentenced to pay the full costs of
the present procedure, if any”.
b.
Position of the Respondent
17.
The Respondent filed an answer on the following terms.
18.
The Respondent states that the Claimant failed to inform to the Respondent the bank
account on which he wished to receive the payment of the amounts provided in the
Settlement Agreement.
19.
The Respondent further states that “after entering into the Settlement Agreement, the
Player had never contacted the [Respondent] for any reason. In other words, the Club was
not aware of any alleged breach of the [Settlement Agreement] by its side, hence, to receive
the claim was very surprising for the Club”
20.
The Respondent states that “it is unquestionable that the [Respondent] has been fully
complying with the [Settlement Agreement] and consequently the claim of [the Claimant]
against Al Nassr Saudi must be disregarded in full”.
21.
The Respondent submits that the Claimant’s argument that he is entitled to a bonus of EUR
500,000 for having qualified to the 2019/2020 Asian Champions League “is simply false
given that by obtaining the league championship the Club automatically obtained its
qualification to the following Asian Champions League”.
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22.
In the view of the Respondent, the main agreement between the Parties was that the
Claimant was going to receive the amount of EUR 6,500,000 from the Respondent for the
full 2018/2019 season. In this regard, the Respondent argues that the seasonal salary was
going to be divided into an Advance Payment corresponding to 3 monthly salaries of EUR
541,667 with the rest of the season salary to be divided in equal monthly salaries of EUR
541,667.00 to complete the EUR 6,500,000 by the end of the season, as agreed in the
Contract. Thus, the Respondent pleads it does not have any overdue salaries towards the
Claimant corresponding to the 2018/2019 season.
23.
Conversely, the Respondent submits that for the full 2019/2020 season the Claimant was
going to receive the amount of EUR 7,000,000.00 from the Respondent.
24.
In this regard, the Respondent argues that “the period of suspension provided in the
Amendment lasted as from 15 March 2020 until 4 August 2020 when the football season
in Saudi Arabia was resumed. In other words, July was still within the scope of the
Amendment”
25.
According to the Respondent, “the Player tried to mislead the DRC into thinking that the
Club owed almost 4 million Euros to him for the 2019/2020 season, while in reality, despite
the financial struggles and difficult times brought by the pandemic, not only did the Club
paid the full salary of the Player but it even over paid EUR 95,580.60”.
26.
The Respondent submitted that by the effective date of the Settlement Agreement, it
recognized overdue salaries amounting to EUR 1,318,362.23 towards the Claimant.
27.
The requests for relief of the Respondent are the following:
a. To dismiss in full the claim of [THE CLAIMANT].
b. On the alternative, in case that our request in point 1 is not granted,
i. to decide that that AL NASSR SAUDI CLUB has not breached the [Settlement
Agreement] dated 25 October 2020.
ii. To decide that under the [Settlement Agreement], [THE CLAIMANT] is
entitled to receive from AL NASSR SAUDI CLUB an amount that under no
circumstances can be higher than EUR 320,340.23, which correspond to
the fourth and final instalment under the [Settlement Agreement] which
will become due not before 25 February 2021.
iii. To decide that no default interests are to be paid by AL NASSR SAUDI.
c. On the alternative, in case that our requests in point 1, 2,3 and 4 above are not
granted, and this Chamber considers that AL NASSR SAUDI CLUB has breached the
[Settlement Agreement] dated 25 October 2020:
i. To decide that Article 5 of the [Settlement Agreement] cannot be enforced
upon AL NASSR SAUDI because it bears no fault for the alleged breach of
the [Settlement Agreement], because it is a manifest abuse of rights of [THE
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CLAIMANT] or because it is so grossly disproportionate that it is contrary to
public policy and morality, as provided in Article 163 (2) of the SCO.
ii. To decide that under the [Settlement Agreement], [THE CLAIMANT] is only
entitled to receive from AL NASSR SAUDI CLUB an amount that under no
circumstances can be higher than EUR 320,340.23, which correspond to
the fourth and final instalment under the [Settlement Agreement] which
will become due not before 25 February 2021.
iii. To decide that no default interests are to be paid by AL NASSR SAUDI.
d. On a further alternative, in case that our requests in points 5, 6 and 7 above are
not granted, and this Chamber considers that AL NASSR SAUDI CLUB has to pay
any amounts under Article 5 of the [Settlement Agreement]:
i. To substantially reduce the amounts provided in Article 5 of the [Settlement
Agreement] and decide that AL NASSR SAUDI CLUB has to pay a penalty to
[THE CLAIMANT] that under no circumstances can be higher than 18% of
EUR 320,340.23 that correspond to the fourth and final instalment of the
payment schedule provided in the [Settlement Agreement], this in terms of
Art. 163 (3) of the Swiss Code of Obligations and the well-established
jurisprudence of FIFA and CAS.
ii. To decide that under the [Settlement Agreement], [THE CLAIMANT] is only
entitled to receive from AL NASSR SAUDI CLUB an amount that under no
circumstances can be higher than EUR 320,340.23, which correspond to
the fourth and final instalment under the [Settlement Agreement] which
will become due not before 25 February 2021.
iii. To decide that no default interest shall accrue in this case, or that they will
accrue as from the date on which FIFA notified the claim of MR. AMHMED
MUSDA to AL NASSR SAUDI CLUB, at the earliest.
e. In any case, we request this Chamber:
i. To decide that AL NASSR SAUDI CLUB shall not be ordered to pay any
amount for legal or procedural costs in relation with these proceedings.
ii. To order [THE CLAIMANT] to pay all the legal and procedural costs arising
from these proceedings.
c.
Rejoinder of the Claimant
28.
The Claimant was given the opportunity to comment on the alleged payments made by the
Respondent and the diverting amounts provided by the parties. The Claimant’s second
submission can be summarised as follows:
29.
The Claimant states that “Exhibits nº 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20,
21, 22, 23, 24, 25, 26 and 27 are merely bank forms, instructions of payment, but none of
them prove that a payment has actually been made. There is no evidence whatsoever about
any money being transferred to the indicated account, as there is no information about the
time such transfer of money operations would have occurred”
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30.
It is further stated that “Exhibits nº 9 to 18, are related to the season 2018/2019 and, thus,
out of the scope of the present claim”.
31.
Regarding the performance bonus, the Claimant further “acknowledges what has been
stated by the Respondent and, in good faith, recognizes its veracity, as such bonus was
considered included within the bonus for winning the League”
32.
In the view of the Claimant, “all payments informed by the Respondent and effectively
received by the Claimant are related only to the 2019/2020 season, in the total approximate
amount of EUR 6,151,162, which corresponds to the full remuneration of the 2019/2020
season, already considering the COVID-19 reduction”. It is further stated that the three
payments made on 1 July 2020 are related to 2019/2020 season, and none of them to the
2020/2021 season.
33.
The Claimant argued that the outstanding remuneration due by the Respondent relates to
the season 2020/2021 only, in the amount of EUR 2,061,828.23. Thus, the Claimant
submits that, each of the instalments under the Agreement should have been in the amount
of EUR 515,457.06.
34.
The Claimant argues that he “did inform his banking details to the Respondent’s VicePresident and kept asking for the proof of payment of the first instalment of the
Agreement”. What is more, in the view of the Claimant “the Respondent was quite aware
that, at least until 8 December 2020, the first instalment (sic) of the Agreement had not
been paid, and left the Claimant with no response”.
35.
With regards to the instalments of the Settlement Agreement allegedly paid by the
Respondent, the Claimant submits that “he has received 3 payments from the Respondent,
as evidenced by the Detailed Bank Statement which all incomes and expenses of the
account as from 01 November 2020, enclosed as Exhibit 12, in the amounts and dates
below:
i. EUR 332,639 on 02 February 2021, related to the second instalment; (sic)
ii. EUR 332,639 on 24 February 2021, related to the third installment; (sic)
iii. EUR 332,574, on 11 March 2021, related to the last instalment”.
36.
The Claimant states that “either the first nor the last installment (sic) was never paid by the
Respondent, and any installments (sic) effectively paid were done so with considerable
delays”.
37.
Regarding the penalty fee of EUR 150,000, the Claimant states that “is obviously not a
disproportionate or excessive amount. Indeed, such penalty fee only represents 2.96% of
the sum agreed under the Settlement Agreement”.
38.
Based on the above, the Claimant provided a new calculation as follows:
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Outstanding remuneration by 25 October 2020:
EUR 2,061,828.23, divided in 4 equal installments (sic) to be paid on 25 November 2020, 25
December 2020, 25 January 2021 and 25 February 2021;
• Remaining salaries of the season 2020/21 (26 October 2020 until 30 June 2021): EUR
4,438,171.77;
• Salaries of the 2021/2022 full season: EUR 7,000,000;
• Penalty fee: EUR 150,000;
• Deduction of bank cheque paid on 25.10.2020: EUR 3,000,000;
• Deduction of late installments (sic) under Settlement Agreement paid in lower amounts:
Total of EUR 997,852, having been paid EUR 332,639 on 02 February 2021, EUR 332,639
on 24 February 2021 and EUR 332,574 on 11 March 2021;
Subtotal amounts due to the player: EUR 13,650,000.
Subtotal amounts paid to the player: EUR 3,997,852.
TOTAL COMPENSATION OVERDUE: 13,650,000 - 3,997,852 = EUR 9.652.148
39.
Based on all the above, the Claimant amended his claim, requesting EUR 9,652,148 to be
paid as compensation for breach of contract, including the additional penalty fee, plus 5%
interest p.a. as from 25 November 2020 until the effective date of payment.
d.
Final comments of the Respondent
40.
The Respondent’s second submission can be summarised as follows.
41.
The Respondent states that the effects of the Amendment due to the unfortunate pandemic
of COVID-19 remained in place “till the date in which the official competitions of the
2019/2020 season are officially resumed, what happened on 4 August 2020”. Thus, the
month of July 2020 was fully covered by the Amendment that the Parties subscribed due
to the pandemic.
42.
In view of the above, the Respondent states that the Claimant was, “in principle, only
entitled to EUR 1,790,995.73 as salaries corresponding to the 2020/2021”.
43.
However, the Respondent argues that it made “an overpayment of EUR 583,334 on 1 July
2020 through two different deposits made to the Player and hence was allowed to take it
into account when calculating the amounts due”.
44.
Regarding the Settlement Agreement, the Respondent reiterates that “Article 5 of the
Settlement Agreement is grossly disproportionate under Swiss Law and consequently it
must be set aside”
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45.
According to the Respondent, “the value of the Settlement Agreement was EUR
4,318,362.23. However, the Claimant is claiming EUR 9,652,148.00 pursuant to Article 5
of the Settlement Agreement. In other words, the amount provided in Article 5 of the
Settlement Agreement represents more than two times the full value of the Agreement
itself, meaning that it is at all lights grossly disproportionate in a manner that would only
allow the Player to enforce an unlawful and immoral undertaking”. Thus, in its view, Article
5 of the Settlement Agreement cannot be enforced under Swiss Law.
46.
The Respondent’s request for relief, as amended, were:
a. “To dismiss in full the claim of MR. AHMED MUSA.
b. On the alternative, in case that our request in point 1 is not granted, we request this
Chamber:
i. To decide that Article 5 of the [Settlement Agreement] cannot be enforced
upon AL NASSR SAUDI CLUB because it bears no fault for the alleged breach
of the [Settlement Agreement], because it is a manifest abuse of rights of MR.
AHMED MUSA or because it is so grossly disproportionate that it is contrary to
public policy and morality, as provided in Article 163 (2) of the SCO and
consequently disregard it.
ii. To decide that AL NASSR SAUDI CLUB only has to pay to MR. AHMED MUSA
the difference between the Club’s calculations of pending salaries by the time
the [Settlement Agreement]was subscribed and the amount that this Chamber
determines as correct in this regard, if anything.
iii. To decide that no default interests are to be paid by AL NASSR SAUDI CLUB.
c. On a further alternative, in case that our requests in points 2, 3 and 4 above are not
granted, and this Chamber considers that AL NASSR SAUDI CLUB has to pay any
amounts under Article 5 of the [Settlement Agreement]:
i. To substantially reduce the penalty provided in Article 5 of the [Settlement
Agreement] in terms of Art. 163 (3) of the Swiss Code of Obligations and the
well-established jurisprudence of FIFA and CAS to an amount that cannot be
higher than 18% of the difference between the Club’s calculations of pending
salaries by the time the [Settlement Agreement] was subscribed and the amount
that this Chamber determines as correct in this regard, as in point 6 below.
ii. To decide that AL NASSR SAUDI CLUB only has to pay to MR. AHMED MUSA
the difference between the Club’s calculations of pending salaries by the time
the [Settlement Agreement] was subscribed and the amount that this Chamber
determines as correct in this regard, if any.
iii. To decide that no default interest shall accrue in this case, or that they will
accrue as from the date on which FIFA notified the claim of MR. AMHMED
MUSA to AL NASSR SAUDI CLUB, at the earliest.
d. In any case, we request this Chamber
i. To decide that AL NASSR SAUDI CLUB shall not be ordered to pay any amount
for legal or procedural costs in relation with these proceedings.
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ii. To order MR. AHMED MUSA to pay all the legal and procedural costs arising
from these proceedings.”
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
47.
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 31 December 2020 and
submitted for decision on 24 June 2021. Taking into account the wording of art. 21 of the
January 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
48.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed 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 (edition February 2021), 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 Nigerian player and
a Saudi club.
49.
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 (edition February 2021), and
considering that the present claim was lodged on 31 December 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
50.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
51.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
Merits of the dispute
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52.
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
53.
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 the existence of a breach of the
Settlement Agreement by the Respondent.
54.
The DRC instantly noted that the claim was filed by the Claimant on the 31 December 2020,
when only two of the four instalments agreed in the Settlement Agreement had fallen due
and without any default notice being sent by the Claimant to the Respondent. The DRC
highlighted that is irrespective of the fact whether, as examined in continuation, the Club
had paid or not the Player on 26 November 2020 and 30 December 2020.
55.
Furthermore, the DRC acknowledged that by the time the matter was submitted for a
decision, the third and fourth instalments had been paid by the Respondent.
56.
In this context, the Chamber acknowledged that it its task was to determine if the
Respondent had breach the Settlement Agreement and in the affirmative, what
consequences should be enforced.
57.
In order to reach a decision, the DRC was thus of the opinion that the following points
should be answered:
a. What were the Claimant’s outstanding salaries for the purposes of art. 3.1 of the
Settlement Agreement?
b. When, if any, were the payments made by the Respondent?
c. What are the consequences of the above?
58.
The Chamber examined these issues in turn.
What were the Claimant’s outstanding salaries for the purposes of art. 3.1 of the
Settlement Agreement?
59.
The DRC noted that throughout the lengthy submissions of the parties, both have diverting,
conflicting and on occasions self-contradicting positions on what was the Claimant actually
owed at the time of the signature of the Settlement Agreement.
60.
Firstly, it must be assessed which is the amount resulting of the “overdue monthly salaries
and bonuses” for the purposes of art. 3 (f) the Settlement Agreement. Both parties had
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diverting opinions but after both sets of submissions by each party, the DRC observed that
the Claimant understands it to be EUR 2,061,828.23 and the Respondent, EUR
1,318,362.23.
61.
Secondly, the DRC had to confirm what was the term in which the Amendment was in
force and therefore, the parties had agreed to reduce the Claimant’s salary to 50%. In this
regard, the DRC was satisfied and agreed with the Respondent that the Amendment was
applicable until 4 August 2020, as this was the date the competitions in Saudi Arabia were
resumed. The DRC found this reasoning to be rather straightforward in line with the clear
contents of the Amendment and the principle of pacta sunt servanda. Furthermore, the
DRC noted that the parties did not dispute the contents of the Amendment, which made
the Chamber comfortable in its conclusion.
62.
Based on the evidence available on file as well as the above, and in particular the proofs of
payment provided by the Respondent, commented on by the Claimant, the DRC was
convinced that the “overdue monthly salaries and bonuses” owed to the Claimant at the
time of the signature of the Settlement Agreement was EUR 1,318,362.23.
63.
For reaching this conclusion, the DRC gave emphasis to the fact that the Claimant had not
provided sufficient evidence to demonstrate that the amount due was higher than the
mentioned figure. The DRC noted additionally that the breakdown of the debt as alleged
by the Claimant was not consistent; it deemed thus that it could not be established the
exact composition of the EUR 2,061,828.23 requested by the Claimant.
64.
At this point, the Chamber wanted to clarify that it was for the Player to demonstrate his
entitlement to the requested in line with article 12 par. 3 of the Procedural Rules. It does
not suffice that the Player requests a sum, albeit with a contractual basis (as it appeared to
be the case at hand) without properly indicating what that sum refers to. Put differently,
the DRC confirmed that it fell upon the Player to discharge its burden of proof regarding
the sought EUR 2,061,828.23 indicating a detailed breakdown of the amount in dispute,
naming individually: (i) each of its components, (ii) their currency, (iii) their contractual basis
and (iv) which period of time (day/month/year) they corresponded to. Per the evidence on
file as well as the Claimant’s position throughout the proceedings, the Chamber was not
comforted that the Player did so. Had the Player done so, it would have been for the
Respondent to challenge the calculation (as it did) and file the corresponding evidence of
having paid the amounts sought.
65.
Based on the aforementioned considerations, the DRC deemed that since the Player could
not sufficiently establish his entitlement, the conclusion that followed was that the
calculation of the amounts to be considered was that of the Respondent.
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When, if any, were the payments made by the Respondent?
66.
Once the above had been established, the DRC moved to the matter of the date payments
were made and if, based on this point, the Respondent had breached the Settlement
Agreement.
67.
In this regard, the DRC carefully reviewed the wording of the relevant clause of the
Settlement Agreement. The members of the Chamber could observe that Clause 3.2.ii) of
the Settlement Agreement establishes the following due dates:
a.
b.
c.
d.
68.
First instalment payable on 25 November 2020;
Second instalment payable on 25 December 2020;
Third instalment payable on 25 January 2021.
Fourth instalment payable on 25 February 2021.
From the documentation available on file, the DRC was convinced that following payment
dates could be determined for the instalments which had fallen due by the time of the
claim:
a. 26 November 2020;
b. 30 December 2020.
69.
The DRC reached its conclusion by carefully examining the bundle of evidence at its disposal.
It gave particular weight to the bank receipts filed by the Respondent which, conversely to
the argument of the Player, are not bank instructions only, but in fact copies of the SWIFT
transfers which are common to the international banking system. More in particular, the
Chamber found no reason – nor has the Claimant presented valid evidence to the contrary
– not to believe that such transfers were authentic and properly performed.
70.
Once the above had been determined, the DRC turn to the Respondent’s arguments
regarding the chronology of the payments. In particular, the Respondent quoted art. 167
of the Swiss Code of Obligations (“SCO”). However, it has failed to provide any consistent
evidence as for the reason or what circumstance “beyond its control” prevented the
Respondent from making the payments within the time agreed between the parties.
71.
Alternatively, the Respondent further argued that it never received a default notice from
the Claimant and therefore was not aware of the breach. In this regard, the DRC
emphasised that whilst sending a default notice is a clear sign of good faith if a party wishes
to avoid litigation, it was not a (valid) mandatory requirement/condition precedent under
any of the contracts signed between the parties for payment to be properly performed.
72.
Hence, as the specific date in which the amounts had to be paid was stated in the
Settlement Agreement and not complied with by the Respondent, the DRC confirmed that
the Respondent had breached the Settlement Agreement and should bear the
consequences arising thereof in line with the principle of pacta sunt servanda.
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Consequences
73.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such the established breach of contract.
74.
In this context, the DRC outlined that it first had to clarify whether the Settlement
Agreement contained any clause by means of which the parties had previously agreed on
compensation payable by the contractual parties in the event of breach. In this regard, the
DRC established that Art. 5 of the Settlement Agreement appeared to be a compensation
clause applicable in the matter at stake, which would be triggered in case of default by the
Respondent. The aforementioned clause states:
“In the event the CLUB does not comply within the agreed deadline with the payment of
(i) EUR 3,000,000.00 and/or of any instalment of the overdue salaries provided in clause 3
.2 (ii) above, it shall be deemed as a breach of contract by the CLUB and the PLAYER shall
have the right to claim the difference between the amount paid by the CLUB under the
present SETTLEMENT AGREEMENT and the residual value of the EMPLOYMENT CONTRACT
plus penalty in the amount of EUR 150,000.”
75.
The members of the Chamber unanimously agreed that under the specific constellation of
the matter at hand, the cited was deemed to be grossly disproportionate, not only because
of the considerable amount corresponding to the residual value of the contract, but also
because of the additional penalty of EUR 150,000 included therein.
76.
The DRC considering also relevant to its conclusion the fact that the breach committed by
the Respondent, consisting on the late payment of two instalments in the total amount of
6 days, was a mild one. The Chamber was satisfied that it was unreasonable to uphold a
clause awarding circa. EUR 9 million to the Claimant for extremely short delay of payment.
77.
The DRC thus agreed that in application of its own longstanding jurisprudence, the
compensation clause had to be reduced in order to be reasonable and proportionate,
bearing in mind the (small) breach committed by the Respondent but at the same time the
free will of the parties once the Settlement Agreement was signed.
78.
Based on the previous considerations, the DRC deemed that a reasonable and proportionate
compensation vis-à-vis the breach committed would be to award the Claimant a penalty of
18% interest per annum over the defaulted amounts for the period of time they remained
outstanding.
79.
In particular, the first instalment was paid 1 day late, whilst the second instalment was paid
5 days late. Therefore, the DRC decided that the Respondent shall pay 18% interest p.a.
over the amount of EUR 332,694 for a period of 6 days.
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80.
Thus, the DRC came to the conclusion that the Respondent shall pay to the Claimant the
amount of EUR 984.41.
ii. Compliance with monetary decisions
81.
Finally, taking into account the aforementioned considerations, the Chamber referred to
par. 1 lit. 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.
82.
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.
83.
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.
84.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
85.
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
86.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
87.
Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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88.
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, Ahmed Musa, is partially accepted.
2.
The Respondent, Al Nassr, has to pay to the Claimant, the following amount:
EUR 984.41 as contractual penalty.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant
bank account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank
details to the Respondent, the following consequences shall arise:
1. 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. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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) 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 20 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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