Labour Disputes
Texto da decisão
REF. FPSD-16796
Decision of the
Dispute Resolution Chamber
passed on 19 December 2024
regarding an employment-related dispute concerning the Player Youness
Najari
BY:
Stefano SARTORI (Italy)
CLAIMANT:
Youness Najari, Morocco
Represented by Mohamed Ghazi
RESPONDENT:
SALMIYA SC, Kuwait
Represented by Pedro Macieirinha
pg. 2
REF. FPSD-16796
I. Facts of the case
1.
On 30 June 2024, the Moroccan player, Youness Najari (hereinafter: the Player or the
Claimant) and the Kuwaiti club, SALMIYA SC (hereinafter: the Club or the Respondent)
entered into an employment contract (hereinafter: the Contract) valid as from July 2024 to
June 2025, with a total remuneration of USD 250,000.
2.
On 19 September 2024, the Claimant and the Respondent concluded a mutual termination
agreement of the Contract (hereinafter: the Termination Agreement).
3.
Clause 2 of the Termination Agreement read as follows:
“The [Player] acknowledges that he accept to receive the amount of US $150,000/(One Hundred and Fifty Thousand US Dollar) as a full and final settlement, in lieu of
his rights of various types resulting from the contract dated on 20/06/2024, whether
originating from the basic salaries or allowances or additional cash or in-kind or
compensation or any other source normal or exceptional.”
4.
Clause 3 of the Termination Agreement read as follows:
“The [Player] agrees that the first party shall pay the amount referred in the previous
article, as follow:
An amount of 75,000/- US dollars to be paid on 30/09/2024.
An amount of 75,000/- US dollars to be paid on 31/12/2024.”
5.
Allegedly, on 7 October 2024, the Claimant put the Respondent in default of payment of
USD 75,000 corresponding to the 1st installment, setting 10 days in order to remedy the
default.
II. Proceedings before FIFA
6.
On 29 October 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
7.
The Claimant lodged a claim for overdue payables and requested the payment of USD
75,000 corresponding to the first instalment of the Termination Agreement.
8.
The Player requested the following relief:
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REF. FPSD-16796
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USD 75,000 plus 5 % interest p.a. as from 30 September 2024 until the date of
payment; and
-
To impose a sportive sanction.
b. Position of the Respondent
9.
In its reply, the Respondent requested to reject the claim.
10. The Respondent indicated that the Claimant found a new club, Club Raja Casablanca, and
therefore, the amounts established in the Termination Agreement shall be mitigated with
the amount of the new contract. In this respect, the Respondent referred to art. 17 of the
Regulations on the Status and Transfer of Players.
11. Moreover, the Respondent mentioned that it did not receive the default sent by the
Claimant and therefore, art 12bis of the Regulations on the Status and Transfer of Players
should not be triggered.
12. The Respondent requested the following:
-
To reject the claim
-
Subsidiarily, “such amount shall be mitigated in accordance with the actual
employment contract of the Claimant wit [sic] the club Raja Casablanca”
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REF. FPSD-16796
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge (hereinafter also referred to as Single Judge) analysed whether
he was competent to deal with the case at hand. In this respect, he took note that the
present matter was presented to FIFA on 29 October 2024 and submitted for decision on
19 December 2024. Taking into account the wording of art. 34 of the March 2023 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.
14. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players(October 2024),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Moroccan player and a Kuwaiti club.
15. Moreover, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2024 edition),
and considering that the present claim was lodged on 29 October 2024, the June 2024
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
16. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
17. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
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REF. FPSD-16796
i. Main legal discussion and considerations
18. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the payment of certain
financial obligations by the Respondent as per the Termination Agreement, namely USD
75,000.
19. In this context, the Single Judge noted that neither party contested the non-payment of the
amounts claimed by the Claimant. Therefore, the Single Judge acknowledged that his task
was to determine, based on the arguments presented by the parties, whether the
Respondent had a valid justification for not having complied with its financial obligations.
20. The Single Judge then took note of the Respondent’s argumentation mentioning that the
Player concluded a new contract with a third club and that his new salary should be
deducted from the amount due as per art. 17 of the Regulations otherwise, it would
constitute unjust enrichment.
21. In this regard, the Single Judge asserted that, although the Respondent referred to art. 17
of the Regulations, both parties concluded a termination agreement, in which the parties
determined the amount to be paid by the Club for the early termination of the Contract,
and therefore, the Single Judge concluded that this was a case for outstanding
remuneration and not compensation for breach of contract.
22. Equally, the Single Judge considered that the Termination Agreement was valid as no
evidence affecting its validity was raised. Moreover, the Single Judge noted that the amount
of compensation for the early termination stipulated in the Termination Agreement was
freely agreed by the parties. Additionally, the Termination Agreement did not provide any
reduction in case the Player would find a new club after the termination. Therefore, the
Single Judge rejected the Respondent’s request of a deduction of the amount the Player
earned in his new contract, and concluded that the Claimant is entitled to USD 75,000.
23. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant USD 75,000.
24. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as from 1 October 2024 until the
date of effective payment.
ii. Compliance with monetary decisions
25. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations which stipulate that, with its decision, the pertinent FIFA
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REF. FPSD-16796
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. In this regard, the Single Judge highlighted that, against clubs,
the consequence of the failure to pay the relevant amounts in due time shall consist, in
principle, of a ban from registering any new players, either nationally or internationally, up
until the due amounts are paid.
26. Notwithstanding the above, the Single Judge wished to remark that in accordance with art.
24 par. 3 of the Regulations, the aforementioned consequences may be excluded where
the pertinent FIFA deciding body has already imposed on the same party a sporting
sanction on the basis of article 12bis, 17 or 18quater of the Regulations.
27. In this respect, the Single Judge recalled that by means of a decision of the Football Tribunal
passed on 11 July 2024 and notified on 25 July 2024, a transfer ban has been imposed on
the Respondent pursuant to art. 17 par. 4 of the Regulations, namely in the case FPSD14312.
28. Accordingly, the Single Judge established that in casu art. 24 par. 2 of the Regulations shall
not apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Respondent would be moot and against the spirit of the Regulations,
in particularly the enforcement mechanism established under art. 24 of the Regulations.
29. In view of the above, the Single Judge decided that if the aforementioned sum plus interest
is not paid within 30 days of notification of this decision, the present matter shall be
submitted, upon request of the Claimant, to the FIFA Disciplinary Committee for its
consideration and formal decision.
30. 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.
d. Costs
31. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
32. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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REF. FPSD-16796
33. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 8
REF. FPSD-16796
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Youness Najari, is partially accepted.
2.
The Respondent, SALMIYA SC, must pay to the Claimant USD 75,000 as outstanding
remuneration plus 5% interest p.a. as from 1 October 2024 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.
If full payment is not made within 30 days of notification of this decision, the
present matter shall be submitted, upon request of the Claimant, to the FIFA
Disciplinary Committee.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-16796
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 Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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