Dispute Resolution Chamber
Texto da decisão
REF FPSD-1857
Decision of the
Dispute Resolution Chamber
passed on 29 April 2021
regarding an employment-related dispute concerning the player Lamin Samateh
COMPOSITION:
Clifford J. Hendel (USA)/ (France), Deputy Chairman
Stéphane Burchkalter (France), member
Mohamed Muzammil (Singapore), member
CLAIMANT:
Lamin Samateh, Gambia
Represented by Alfonso León Lleó
RESPONDENT:
Al Njoom FC, Saudi Arabia
Represented by Mr Saeid El Omari
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I.
FACTS OF THE CASE
1.
On 5 October 2020, the parties signed an employment contract (hereinafter referred to as:
contract), valid between 10 October 2020 and 9 April 2022, based on which the player was
entitled to the total amount of USD 149,000, as follows:
-
USD 8,000 net as monthly salary
USD 5,000 as ‘contract provider’ based on art. 4.1 alinea 1 of the contract.
2.
Article 9 of the contract contains the following clause: ‘The present contract shall be
governed by SAFF Statutes and Regulations, including SAFF TLPS as well as Saudi Law. For
foreign players only, FIFA Regulations and Swiss shall be applicable on a subsidiary basis
instead of Saudi law. Any dispute arising out of this contract shall be submitted to the
exclusive jurisdiction of the Dispute Settlement Chamber of the Players’ Center Committee
in the Kingdom of Saudi Arabia. Only if the PSC SAFF rejects its jurisdiction shall the dispute
be submitted to the exclusive jurisdiction of the Saudi Court of Arbitration.’
3.
On 19 and 28 December 2020, the player put the club in default for the (partially)
outstanding salaries for the months of October, November and December 2020, providing
a 10 days’ deadline to remedy it default, however to no avail.
4.
On 8 January 2020, the player provided the club with a final deadline until 15 January 2021
to pay him the outstanding salaries and a remark that he would otherwise terminate the
contract, however to no avail.
5.
On 26 January 2020, the player left Saudi Arabia, allegedly without the permission of the
club.
6.
On 28 January 2020, the player unilaterally terminated the contract with the club with
immediate effect, due to the (partially) outstanding salaries for the months of October,
November and December 2020 and January 2021 in the total amount of USD 27,000.
II.
PROCEEDINGS BEFORE FIFA
7.
On 22 February 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
8.
The claim of the Claimant
According to the Claimant, he is entitled to outstanding remuneration and compensation
for breach of contract, due to the fact that on 28 January 2021, he had terminated the
contract with just cause.
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9.
The requests for relief of the Claimant, were the following:
b.
Outstanding remuneration in the total amount of USD 27,000, as well as 5%
interest p.a. as from the respective due dates;
Compensation for breach of contract in the total amount of USD 115,690, as well
as 5% interest p.a. as from the respective due date;
Compensation for the specificity of the sport in the total amount of USD 48,000,
as well as 5% interest p.a. as from the respective due date;
Sporting sanctions to be imposed on the club;
USD 5,000 as legal costs.
Position of the Respondent
10.
According to the Respondent, first of all, FIFA is not competent to deal with the matter at
hand.
11.
The club brought forward that instead of FIFA, the National Dispute Resolution Chamber at
the Saudi Football Federation (hereinafter: ’the Saudi Arabian NDRC’) should be competent
to deal with the matter at hand.
12.
Furthermore, the club argued that the Saudi Arabian NDRC meets the requirements of FIFA
Circular 1010, guarantees fair proceedings and respects the principle of equal
representation of players and clubs. In this respect, the club submitted ‘the SSAC Statute
Regulations and its Procedural Rules’.
13.
Furthermore, the Respondent confirmed that it made a payment of USD 5,000 to the
Claimant in good faith.
14.
In addition, the Respondent states that the lawyer of the Claimant, Ruiz-Huerta & Crespo,
did not provide a written Power of Attorney, when it first contacted the Respondent on
behalf of the Claimant.
15.
Also, the Respondent argues that it paid the pro rata part of the Claimant’s salary for
October 2020, as a result of which for this month there is not outstanding debt. For the
salary for the month of November 2020, the Respondent explains that the Claimant did not
want to collect his cheque, and for the salary for the month of December 2020, the
Respondent explains that these salaries were never requested by the Claimant. In general,
the club was only provided 10 days’ to remedy its default, and not 15 days’, as art.14bis
would require.
16.
Finally, the Respondent argued that the Claimant terminated the contract without just
cause and that since his arrival in Saudi Arabia he ‘malingered’ many times, which avoided
him from ‘playing official matches’.
17.
The requests for relief of the Respondent, were the following:
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III.
To declare the claim inadmissible;
Subsidiary, tor reject the Claimant’s claim.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
18.
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 22 February 2021 and
submitted for decision on 29 April 2021. Taking into account the wording of art. 21 of the
February 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.
19.
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. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber is in principle competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Gambian player and a Saudi Arabian club.
20.
However, in this respect, the members of the Chamber noted that the Respondent
contested the competence of FIFA to deal with the matter at hand, arguing that the Saudi
Arabian NDRC would be competent
21.
While analysing whether it was competent to hear the present matter, the Chamber
deemed it vital to outline that one of the basic conditions that needs to be met in order to
establish that another organ than the DRC is competence to settle an employment-related
dispute between a club and a player of an international dimension, is that the jurisdiction
of the relevant national arbitration tribunal or national court derives from a clear reference
in the employment contract.
22.
Therefore, while analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost, analyse whether
the employment contract at the basis of the present dispute contained a clear jurisdiction
clause.
23.
In this connection, the Chamber was of the firm opinion that the art. 9 of the contract
refers to two deciding bodies, i.e. the Dispute Settlement Chamber of the Players’ Centre
Committee in the Kingdom of Saudi Arabia and the Saudi Court of Arbitration. The
members of the Chamber therefore concluded that said article is not exclusive, and thus,
cannot be considered as a valid arbitration or jurisdiction clause.
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24.
Moreover, the Respondent only submitted the Statutes of the Saudi Court of Arbitration,
and no further documentation as regards to the abovementioned deciding bodies is on file.
From available documentation, it cannot be established with certainty that the Saudi Court
of Arbitration is composed in line with the FIFA Circular 1010, and therefore, meets the
principle of fair proceedings.
25.
In view of all the above, the Chamber established that the Respondents’ objection to the
competence of FIFA to deal with the present matter has to be rejected and that the Dispute
Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the
Status and Transfer of Players, to consider the present matter as to the substance.
26.
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 22 February 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
27.
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.
28.
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.
29.
Merits of the dispute
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
30.
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 or not the contract was
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terminate with or without just cause by the Claimant on 28 January 2021 and whether or
not the Respondent had duly fulfilled its contractual obligations, if any.
31.
In this context, the Chamber acknowledged that it its task was to determine whether there
were indeed contractual obligations form the Respondent towards the Claimant, and if so,
whether the termination of the contract on 28 January 2021.
32.
Entering into the substance of the matter at hand, the members of the Chamber first of all
deemed it relevant to point out that from the documentation on file it is clear that the
parties were bound to a contract valid between 10 October 2020 and 9 April 2022.
33.
Based on the aforementioned document, it appears that the Claimant was entitled to
receive from the Respondent an amount of USD 149,000.
34.
What is more, the Chamber deemed that the Respondent’s argumentation in relation to
the power of attorney does not appear to be relevant in the matter at hand, as the a recently
issued and signed power of attorney for the law office Ruiz-Huerta & Crespo is on file.
35.
As to the non-payment of the contractually agreed amounts, the Chamber was of the
unanimous opinion that the Respondent had not submitted any valid arguments as to why
it did not comply with its financial obligations.
36.
In conclusion, the Chamber established that – after the Respondent was put in default by
the Claimant on 8 January 2021, however to no avail - on the date of termination, 28
January 2021, the salaries for November and December 2020, as well as the unpaid pro
rata part of the January 2021 remained outstanding.
37.
Recalling the provisions set out in art. 14bis par. 1 according to which in the case of a club
unlawfully failing to pay a player at least two monthly salaries on their due dates, the player
will be deemed to have a just cause to terminate his contract, provided that he has put the
debtor club in default in writing and has granted a deadline of at least 15 days for the
debtor club to fully comply with its financial obligation(s), the Chamber concluded that the
Claimant had just cause to unilaterally terminate the contract.
38.
In conclusion, despite not having strictly complied with the regulations of art. 14bis of the
Regulations, the Chamber deemed that – by waiting to terminate the contract until 28
January 2021 (i.e. 20 days after the default notice which was sent on 8 January 2021), the
Claimant had de facto followed the prerequisites of art. 14bis.
39.
As a result, it can be concluded that the player terminated the contract with just cause on
28 January 2021 and that the Respondent is to be held liable for the early termination of
the employment contract.
40.
Bearing in mind the previous considerations, the Chamber turned its attention to the
consequences of the early termination of the contract with just cause by the Claimant.
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ii. Consequences
41.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent 1 during the protected period.
42.
First of all, the members of the Chamber concurred that the Respondent must fulfil its
obligations as per employment contract up until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”.
43.
Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant
the remuneration that was outstanding at the time of the termination i.e. the amount of
USD 16,248, consisting of three monthly salaries in the amount USD 5,416 for the period
between November 2020 and January 2021.
44.
Furthermore, in line with its well-established jurisprudence, the members of the Chamber
decided to award 5% interest p.a. on the amount of USD 5,416 as from the respective due
dates.
45.
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.
46.
In this context, the Chamber outlined that, in accordance with 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.
47.
In application of the relevant provision, the Chamber held that it first of all 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.
48.
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
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contract, along with the professional situation of the Claimant after the early termination
occurred.
49.
In this respect, the Chamber pointed out that at the time of the termination of the
employment contract on 28 January 2021, the contract was supposed to run until 9 April
2022, in which period a total amount of USD 77,448 (14 monthly salaries of USD 5,416
each, as well as the pro rata salary for the period between 1 April and 9 April 2022 in the
amount of USD 1,624), was to be paid. 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 USD 77,448. Such amount shall therefore serve as the basis for the final
determination of the amount of compensation for breach of contract.
50.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant did not find any
employment and was therefore not able to mitigate his damages. As a result, no further
mitigation shall be applied.
51.
In view of all of the above, the Chamber decided that the Respondent must pay the amount
of USD 77,448 to the Claimant as compensation for breach of contract without just case,
which is considered by the Chamber to be a reasonable and justified amount as
compensation.
52.
Furthermore, in line with its well-established jurisprudence, the members of the Chamber
decided to award 5% interest p.a. on the amount of USD 16,248 as from the date of claim,
i.e. 22 February 2021.
53.
In conclusion, the DRC decided that the Respondent is liable to pay the total amount of
USD 96,696 to the Claimant, consisting of the amount of USD 24,677 corresponding to
the Claimant’s outstanding remuneration at the time of the unilateral termination of the
contract with just cause by the Claimant and the amount of USD 77,448 corresponding to
compensation for breach of contract without just cause.
54.
Finally, In addition, as regards the claimed legal expenses, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be awarded in
proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber
decided to reject the Claimant’s request relating to legal expenses.
55.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
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iii. Compliance with monetary decisions
56.
Finally, taking into account the consideration under number 53. above, 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.
57.
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.
58.
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.
59.
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.
60.
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.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Lamin Samateh, is partially accepted.
2.
The Respondent, Al Njoom FC, has to pay to the Claimant, the following amount:
- USD 16,248 as outstanding remuneration, plus 5% interest p.a. until the effective date
of payment as follows:
on the amount of USD 5,416 as from 1 December 2020;
on the amount of USD 5,416 as from 1 January 2021;
on the amount of USD 5,416 as from 1 February 2021;
- USD 77,448 as compensation for breach of contract, plus 5% interest p.a. as from 22
February 2021 until the effective date of 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 article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7. This decision is rendered without costs.
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).
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