DRC Overdue Payables
Texto da decisão
REF. FPSD-15296
Decision of the
Dispute Resolution Chamber
passed on 24 October 2024
regarding an employment-related dispute concerning the Player Walid
Sabbar
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico), Member
Bruinewoud Alexandra GOMEZ (Uruguay & the Netherlands), Member
CLAIMANT:
Walid Sabbar, Morocco
Represented by Slim Boulasnem
RESPONDENT:
ARABI SC, Kuwait
Represented by Georgi Gradev
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REF. FPSD-15296
I. Facts of the case
1.
On 30 August 2023, the Moroccan player, Walid Sabbar (hereinafter: the Player or the
Claimant) and the Kuwaiti club, Arabi SC (hereinafter: the Club or the Respondent) concluded
an employment contract (hereinafter: the Contract) valid as from 1 September 2023 until
30 June 2024.
2.
In accordance with the Contract, the Claimant was entitled to a monthly salary of KWD
5,530.
3.
Clause 3.5 of the Contract reads as follows:
“ The [the Claimant] shall bear any fine imposed by KFA or AFC for violating the
federation regulations, will be deducted from his monthly salary. If a suspension
penalty associated with time or with a certain number of matches is imposed on him,
the club has the right to deduct the player’s monthly salary.”
4.
On 1 December 2023, the Claimant put the Respondent in default of payment of KWD
11,060 corresponding to October and November 2023 salaries; setting a time limit of 15
days in order for the Respondent to remedy the default.
5.
On 21 December 2023, the Claimant mentioned that it received a partial payment and
requested the Respondent the remaining amount within 5 additional days.
6.
On 22 December 2023, the Respondent replied to the Claimant informing him that the
payments were delayed due to the particular situation in Kuwait and that it would pay such
amounts.
7.
On 26 December 2023, the Club paid the Player’s salaries.
8.
On 27 December 2023 and notified on 28 December 2023, the Disciplinary committee of
the Kuwait Football Association (KFA) rendered a decision (hereinafter: the KFA decision),
suspending the Claimant for 2 matches and fining him KWD 1,500 in accordance with the
KFA's Disciplinary Regulations following the incidents that occurred during the match on
25 December 2023.
9.
On 6 January 20424, the Respondent informed the Claimant that following the FKA
decision, it would deduct 100% of the Claimant’s salary in accordance with clause 3.5 of the
Contract.
10. On 10 January 2024, the legal representative of the Claimant contested such sanction,
mentioning the following:
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REF. FPSD-15296
“We hereby submit the player's objection to the latest correspondence in which you
have informed us that you have decided to deduct 100% of players' wages due to a
sanction imposed by the KFA Disciplinary Committee. Please note that we do not
recognise the legality of the alleged sanction imposed by the FA or of the deduction
decided unilaterally by the club.
First of all, your club never informed the player that disciplinary proceedings had been
initiated against him by the KFA and whether he had the right to appeal.
Furthermore, it seems that you wish to deduct 100% of the player's salary. We refuse
to accept this sanction because the player cannot be penalised twice. If you insist and
proceed without the player's consent, please note that I will lodge a complaint with
the FIFA Football Tribunal. Please take note of this and confirm that you will only
deduct the sanction decided by the KFA.”
11. On 1 March 2024, the Claimant put the Respondent in default of payment of KWD 16,590
corresponding to December 2023, January 2024 and February 2024 salaries; setting a time
limit of 15 days in order for the Respondent to remedy the default. The Player also
contested the sanction imposed.
12. On 1 July 2024, the Claimant put again the Respondent in default of payment of KWD 16,590
corresponding to December 2023, May 2024 and June 2024 salaries; setting a time limit of
10 days in order for the Respondent to remedy the default.
II. Proceedings before FIFA
13. On 19 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is set out below.
a. Position of the Claimant
14. The Claimant requested outstanding remuneration in accordance with the Contract and
requested the following amounts:
-
KWD 5,530 as December 2023 salary plus 5 % interest as from 1 January 2024.
-
KWD 5,530 as May 2024 salary plus 5 % interest as from 1 June 2024.
-
KWD 5,530 as June 2024 salary plus 5 % interest as from 1 July 2024.
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REF. FPSD-15296
15. Moreover, the Claimant, as to the disciplinary sanction, mentioned the following “on the
question of the sanction imposed by the club, this cannot be valid imposed by the club cannot
be valid, as it was imposed arbitrarily without due process and is disproportionate, as it
corresponds to a full month's salary, in accordance with the FIFA LRC's case law of the FIFA LRC”.
b. Position of the Respondent
16. In its reply, the Respondent requested to reject the claim.
17. The Respondent mentioned the following:
“The Claimant claims outstanding salaries for December 2023, May, and June 2024.
The latter two salaries were fully paid recently. The December 2023 salary is not due
pursuant to a clause in the contract, which states: "¡The second party shall bear any
fine imposed by KFA or AFC for violating the federation regulations, will be deducted
from his monthly salary. If a suspension penalty associated with time or with a certain
number of matches is imposed on him, the club has the right to deduct the player's
monthly salary." In this respect, on December 27, 2023, the Kuwait Football Federation
Disciplinary Committee ("KFA DC") sanctioned the Claimant with a four-match
suspension and a fine of KWD 1,500. Consequently, and in the application of the
principle of pacta sunt servanda, the Respondent had a contractual basis to deduct
the fine of KWD 1,500 imposed by the KFA DC from the Claimant's December 2023
salary and to deduct the rest of his remuneration for the same month.”
18. With regard to the fine of KWD 1,500, the Respondent mentioned that, in accordance with
clause 3.5 of the Contract and the KFA decision, a deduction of KWD 1,500 should be made
from the Claimant's salary. It should be noted that the Respondent submitted a letter from
the KFA stating that the amount of KWD 1,500 had been deducted from the Club's account.
19. With regard to the remaining amount, i.e. KWD 4,030, the Respondent was entitled to
deduct this amount pursuant to the Swiss Code of Obligations (art. 323) and clause 3.5 of
the Contract, as the Player had intentionally caused damage. Alternatively, the Respondent
requested the DRC to deduct at least 25% of such penalty as the Respondent had the right
to sanction the Player as the Club would not rely on his services.
20. Finally, with regard to May and June salaries, it mentioned that the amounts were paid on
15 and 19 August 2024 and no interests should be awarded, as it lacks contractual basis.
The Respondent provided the following bank statements: a payment of KWD 600,289 and
KWD 399.793 on 15 August 2024 and a payment of KWD 10,059.77 on 19 August 2024.
c. Rejoinder of the Claimant
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REF. FPSD-15296
21. The Claimant failed to provide his rejoinder to the Respondent’s response within the time
limit granted by the FIFA general secretariat.
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REF. FPSD-15296
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. First of all, the Dispute Resolution Chamber (hereinafter: the 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 19 July 2024 and submitted for decision on
24 October 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.
23. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 Moroccan player
and a Kuwaiti club.
24. 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 Players (June 2024 edition), and
considering that the present claim was lodged on 19 July 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
25. 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 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 TMS.
c. Merits of the dispute
26. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
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i. Main legal discussion and considerations
27. The Chamber then moved to the substance of the matter and took note of the fact that the
Claimant is requesting outstanding remuneration arising from the Contract.
28. In particular, the Chamber noted that the Claimant requested payment of the salaries for
December 2023, May 2024 and June 2024. The Respondent, on the other hand, mentioned
that December 2023 should be deducted following the KFA decision and that the salaries
for May and June had been paid and that no interest should be applied. Finally, the
Chamber noted that the Claimant had not submitted any comments on the Respondent's
reply.
29. In this context, the Chamber acknowledged that its task was to determine, whether the
claimed amounts had in fact remained unpaid by the Respondent and, if so, whether the
latter had a valid justification for not having complied with its financial obligations.
30. The Chamber first noted that the months of May and June 2024 were paid in full during the
current proceedings, a fact that was not disputed by the Claimant. In particular, the
Chamber found that the following payments were made on 15 August 2024: KWD 600,289
and KWD 399,793, and on 19 August 2024: KWD 10,059,770, totalling KWD 11,060.
Consequently, the amount was paid in full, but only during the course of the present
proceedings and not on the due dates. Therefore, the Chamber decided that the
Respondent shall pay interest at a rate of 5% per annum, taking into account the Player's
request as well as the constant practice of the Football Tribunal. In this context, the
Chamber decided to award the Player interest at the rate of 5% p.a. on the outstanding
amounts as follows:
-
On the amount of KWD 5,530 as from 1 June 2024 until 14 August 2024.
-
On the amount KWD 5,530 as from 1 July 2024 until 14 August 2024.
-
On the amount of KWD 11,060 as from 15 August until 18 August 2024.
31. The Chamber then observed that December 2023 salary was not paid, however, the
Respondent claimed that this amount should not be paid following the KFA Decision and
the application of clause 3.5 of the Contract.
32. In this respect, the Chamber stressed the following:
-
On 27 December 2023, the Player was suspended for 2 matches and received a fine
of KWD 1,500 as per the KFA decision following the Player’s behaviour during a match
on 25 December 2023. The Chamber noted that the decision was taken two days
after the mentioned match and the decision did not contain a request forthe Parties’
position.
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REF. FPSD-15296
-
The Club notified the Player on 6 January 2024 of the KFA decision and informed
that 100% of his December salary would be deducted.
-
On 10 January 2024, the Claimant contested such deduction and mentioned that he
was not informed about it. However, he also mentioned the following: “Please take
note of this and confirm that you will only deduct the sanction decided by the KFA”.
-
A confirmation letter from the KFA mentioning that it withheld the amount of KWD
1,500 from the Club’s account.
-
The wording of clause 3.5 of the Contract: “The second party shall bear any fine
imposed by KFA or AFC for violating the federation regulations, will be deducted from his
monthly salary. If a suspension penalty associated with time or with a certain number of
matches is imposed on him, the club has the right to deduct the player’s monthly salary.
-
The Claimant did not provide his comments on the Replica.
33. In view of the foregoing, the Chamber considered that that fine imposed by the KFA shall
be deducted (KWD 1,500) from the Player’s salary as it was contractually agreed that the
Club could deduct this type of fine from the Player’s remuneration; the fine was timely
notified to the Player – i.e., a few days after the KFA decision; the fine followed a decision
issued by the KFA; and the amount was in fact paid by the Club. However, as to the
remaining amount of the December salary withheld, the Chamber considered that such
withholding lacks any disciplinary basis and/or proportionality. Therefore, the Chamber
decided to award the Player the remaining amount KWD 4,030. The Chamber also decided
to award the Player interest at the rate of 5% p.a. on the mentioned amount as from 1
January 2024 until the date of payment.
ii. Art. 12bis of the Regulations
34. Having stated the above, the Chamber referred to art. 12 bis par. 2 of the Regulations,
which stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12 bis
par. 4 of the Regulations.
35.
To this end, the Chamber confirmed that the Claimant put the Respondent in default of
payment of the outstanding amount, which had fallen due for more than 30 days, and
granted the Respondent with 10 days to remedy their default.
36. Accordingly, the Chamber also confirmed that the Respondent had delayed a due payment
without a prima facie contractual basis. It followed that the criteria enshrined in art. 12 bis
of the Regulations were met in the case at hand.
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37. The Chamber further established that by virtue of art. 12 bis par. 4 of the Regulations, it
has competence to impose sanctions on the Club. On account of the above and bearing in
mind that this is the first offense by the Club within the last two years, the Chamber decided
to impose a warning on the Respondent in accordance with art. 12 bis par. 4 lit. a) of the
Regulations.
38. In this connection, the Chamber highlighted that a repeat offence will be considered as an
aggravating circumstance and lead to more severe penalty in accordance with art. 12 bis
par. 6 of the Regulations.
iii. Compliance with monetary decisions
39. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 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.
40. In this regard, the Chamber 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.
41. Therefore, bearing in mind the above, the Chamber 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. 24 par. 2, 4, and 7 of the Regulations.
42. 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.
43. The Chamber 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. 24 par.
8 of the Regulations.
d. Costs
44. 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,
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REF. FPSD-15296
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
45. 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.
46. 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-15296
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Walid Sabbar, is partially accepted.
2.
The Respondent, ARABI SC, must pay to the Claimant the following amounts:
a. KWD 4,030 as outstanding remuneration plus 5% interest p.a. as from 1
January 2024 until the date of effective payment;
b. 5% interest p.a. over the amount KWD 5,530 of as from 1 June 2024 until 14
August 2024;
c. 5% interest p.a. over the amount KWD 5,530 of as from 1 July 2024 until 14
August 2024;
d. 5% interest p.a. over the amount KWD 11,060 of as from 15 August 2024 until
18 August 2024;
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 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:
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 of the ban shall
be of up to 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.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
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8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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
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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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