Labour Disputes
Texto da decisão
REF 20-01042
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 December 2020,
regarding an employment-related dispute concerning the player Naim Sliti
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Stijn Boeykens (Belgium), member
Pavel Pivovarov (Russia), member
CLAIMANT:
NAIM SLITI, France & Tunisia
represented by Mr. Georgi Gradev & Ersin Hamarat
RESPONDENT:
AL ETTIFAQ CLUB, Saudi Arabia
represented by R & A Sports Law
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1.
On 8 August 2019, the player Naim Sliti (hereinafter: “the Claimant” or “the player”) and the club
Al Ettifaq Club (hereinafter: “the Respondent” or “the club”) concluded an employment contract
(hereinafter: “the contract”) valid from 7 August 2019 until 30 June 2022 with an option to extend
until 30 June 2023.
2.
Item 3 of the contract provides: “The two parties shall comply with and implement the laws,
circulars and regulations issued by FIFA”.
3.
Item 4.4 of the contract states that the Respondent should pay the Claimant the following:
1) First advance payment of USD 150,000 on or before August 31, 2019;
2) Second advance payment of USD 150,000 on or before August 31, 2020;
3) Third advance payment of USD 150,000 on or before August 31, 2021;
4) A monthly salary of USD 125,415, including air tickets cost, for ten months from end of
September 2019 until end of June 2020;
5) A monthly salary of USD 104,580, including air tickets cost, for twelve months from end of
July 2020 until end of June 2021;
6) A monthly salary of USD 112,915, including air tickets cost, for twelve months from end of
July 2021 until end of June 2022;
7) Winning bonus per match;
8) Housing allowance: The club will provide a two bedroom apartment in a compound not
exceeding USD 24,000 per season;
9) Transportation: the club will provide a car;
10) Insurance for him and his family.
4.
Item 5.20 of the contract provides, inter alia, that “the player acknowledges that he has read and
agreed to the list of the penalties issued by the Saudi Football Federation and the internal
regulations of the club as well as he received a copy of the mentioned documents in English”.
5.
Item 6 of the contract provides that the Respondent may not delay payment of the Claimant´s
salaries or terminate the contract due to an injury during a match or training.
6.
Item 8 of the contract stipulates that the Respondent may take decisions and issue sanctions
against the Claimant in case the latter violates his obligations stipulated in the contract without
prejudice to the regulations, provided that it shall inform the Claimant in writing, and the latter
may object according to regulations and rules.
7.
Item 9.2 of the contract states: “FIFA and CAS is concerned with considering and resolving the
disputes that arise between the club and the player on this professional contract, implementing
and interpreting it”.
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8.
Item 14 of the contract provides: “General Provisions: 1. The two parties declare that they have
taken note of SAFF and FIFA regulations and circulars before signing this contract and that they
are obliged to implement them. 2 Determination of reasons and personal circumstances shall be
subject to discretion of the first party [i.e. the club] and the committee. 3. The provisions of
Professional Players´ status and transfer regulations shall apply to all matters not provided for in
this contract. 4. The two parties may agree on the addition of any terms or conditions to the
contract without prejudice to regulations”.
9.
On 15 March 2020, due to the COVID-19 pandemic the sports authority in Saudi Arabia decided
to stop all sport activities in the country including all football activities (training sessions,
competitions, friendly matches).
10. On 15 April 2020, the Respondent sent an email to the Claimant and his agent stating “Dear Naim
& Frank, Attached is a new agreement related to salary reduction due to the global health
pandemic for your signature. Please let us know if you have any question”. The attached draft
agreement (hereinafter: “the proposal”) dated 14 April 2020 provided, inter alia,:
"[ . . .]. FIFA has decided that COVID/19 represents a major force which can suspend and stop all
the contractual obligations.
In concordance with the FIFA recommendations to stop bad effects of this pandemic on the
financial situation of the clubs and to guarantee the minimum necessary salary for players and
coaches during the suspension of activities, we have to find a common solution to make just
equilibria between the necessity to receive a minimum of salary and to guarantee the survival of
the club in avoiding financial difficulties and a bankrupt. Thus, taken in account the very difficult
financial situation and in order to preserve our contractual stability we kindly submit these
propositions:
1. Decrease monthly salary by 50 % of the amount over 20,000 SAR (the player will receive 20,000
SAR + 50 % of the rest of the salary which exceeds SAR 20,000}. This amount will be paid since
the suspended date of activities in Saudi Arabia on 15/03/2020 until the start of the activities.
2. No deduction or detention will be applied on the part of salary received by the player.
3. The others advantages stipulated on the contract namely insurance, car, and accommodation
will be guaranteed by the club to the player and all his family in Saudi Arabia only.
4. All payments related to contractual primes (Signature or others) will be suspended and will be
scheduled after restarting competition.
5. When the activities and competitions restart, player will be entitled to receive his full salary and
scheduled prime.
6. The club prefers that the player remain at his residence in the Kingdom of Saudi Arabia and the
club pledges to provide all his necessities.
7. If the player desire to return to his country, he may do so after coordination with the embassy
of his country in the Kingdom”.
11. On 17 April 2020, the Respondent sent a new email to the Claimant and his agent requesting his
feedback in connection to the proposal sent on 15 April 2020.
12. On 19 April 2020, the Respondent sent another email to the Claimant and his agent requesting
his feedback in connection to the proposal and inviting him for a conference call “to negotiate
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and discuss further the justification behind such a decision, please advise the best time to make
the conference tomorrow”.
13. On 20 April 2020, the Claimant´s agent replied to the Respondent informing that his lawyer will
contact the club “tomorrow or after tomorrow”.
14. On 27 April 2020, the Respondent notified the Claimant a decision passed on the same day, which
stated that based on the FIFA Bureau decision and guidelines recognizing that the disruption to
football caused by COVID-19 was a cause of force majeure and taking into account the difficult
financial situation of the club and in order to preserve the contractual stability, the club had sent
him an email on 15 April 2020 with a proposal to decrease his monthly salary. “… On 17 and 19
April 2020, the club sent to you once again emails in order to remind you that this is a difficult
situation and that we must unite at the end to overcome it… Due to the fact that no feedback
was received on the submitted proposal we inform you that we are obliged to apply a reduction
in your salary from 15 March 2020 until the resumption of sports activity in Saudi Arabia as follows:
1. Decrease monthly salary by 50 % of the amount over 20,000 SAR (the player will receive 20,000
SAR + 50 % of the rest of the salary which exceeds 20,000 riyals. This amount will be paid since
the suspended date of activities in Saudi Arabia on 15/03/2020 until the activities will restart.
2. The player will receive this amount NET without any deduction or detention.
3. The others advantages stipulated on the contract namely insurance, car, accommodation and
food will be guaranteed by the club to the player in Saudi Arabia.
4 . The contract will be extended until the new date of the end of season and for this new period
the player will receive a full monthly salary as indicated in his contract.
5 . When the activities and competitions restart, player will be entitled to receive his full salary and
scheduled prime until the new date fixed for the end of the 2019-2020 season."
15. On 6 May 2020, the Claimant informed the Respondent that he would travel with his family to
his home country (Tunisia) on 7 May 2020 and that he will return to the club before the training
starting according to the health rules of the country.
16. On 6 June 2020, the Claimant sent a first default notice to the Respondent requesting the payment
of USD 376,245 (USD 125,415 x 3) corresponding to the monthly salaries of March, April and May
2020 granting 15 days (cf. art.14bis of the Regulations on the Status and Transfer of Players (RSTP))
to the Respondent to remedy the default.
17. On 11 June 2020, the Respondent paid to the Claimant an amount of USD 226,136.
18. On 30 June 2020, the Respondent paid to the Claimant an amount of USD 51,930 to the Claimant.
19. On 1 July 2020, the Claimant sent a second default notice to the Respondent requesting the
payment of USD 275,524 corresponding to the monthly salaries from March to June 2020 minus
the payment mentioned under point 17. above (i.e. USD 501,661 – USD 226,136 paid) granting
15 days (cf. art. 14bis of the RSTP) to the Respondent to remedy the default, failing which the
Claimant would terminate the contract with immediate effect. In the same letter, the Claimant
further stated: “For the sake of completeness, and as Al-Ettifaq FC is threatening Mr. Sliti with
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sanctions due to his absence from work as of today, I am bound to remind you that, according to
the principle of exceptio non adimpleti contractus (cf. also Article 82 of the Swiss Code of
Obligations), in case of late payment by the employer, the employee may withhold the
performance of his obligations, and the employer is not entitled to sanction the player (cf. CAS
2013/A/3089; CAS 2013/A/3426). Therefore, should you be tempted to impose any sanction on
Mr. Sliti for his absence during the ongoing period of the Club’s default towards him, such a
measure will be deemed illegal and will not be recognized. In any event, according to the standing
FIFA and CAS jurisprudence, the imposition of a fine, or any other available financial sanction in
general, shall not be used by clubs as a means to offset outstanding financial obligations towards
players. This is particularly true in our case, in which there is no contractual basis for the club to
set off a fine against the Player’s salary. Therefore, Al-Ettifaq must continue paying Mr. Sliti’s salary
in full, according to the terms of the contract”.
20. On 22 July 2020, the Claimant lodged the present claim against the Respondent requesting the
amount of USD 150,109 corresponding to the outstanding balance related to the monthly salaries
of March, April and May 2020 minus the partial payment mentioned under point 17. above (i.e.
USD 376,245 – USD 226,136), plus interest of 5% p.a. as follows:
a) on USD 24,694 as of 1 May 2020 until the date of effective payment;
b) on USD 125,415 as of 1 June 2020 until the date of effective payment.
21. Moreover, the Claimant requested the imposition of sporting sanctions on the Respondent in
accordance with the art. 12bis of the RSTP.
22. The Claimant held that by failing to pay the outstanding salaries from March to May 2020 the
Respondent materially breached clauses 4.4 and 6 of the contract.
23. The Claimant added having sent two default notices to the Respondent, to no avail. The Claimant
concluded that the Respondent delayed the payment of the monthly salaries from March to May
2020 for more than 30 days without a prima facie contractual basis.
24. On 1 August 2020, the Claimant amended his claim and added the monthly salaries of June and
July 2020. In sum the Claimant requested the Respondent the payment of the total amount of
USD 380,104 plus an annual interest of 5% as follows:
a) on USD 24,694 as of 1 May 2020 until the date of effective payment;
b) on USD 125,415 as of 1 June 2020 until the date of effective payment;
c) on USD 125,415 as of 1 July 2020 until the date of effective payment and
d) on USD 104,580 as of 1 August 2020 until the date of effective payment.
25. Moreover, the Claimant requested the imposition of sporting sanctions on the Respondent in
accordance with art. 24bis of the RSTP.
26. The Claimant claimed that in the application of the legal principle of pacta sunt servanda, the
outstanding wages have to be paid to him on a net basis, free of any taxation, the Respondent
being responsible for the filing and payment of all taxes relating to these payments to him.
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27. Furthermore, the Claimant specified that the Respondent has to pay his outstanding salaries
without any reduction whatsoever.
28. In addition, the Claimant stated that neither the RSTP nor the FIFA COVID-19 guidelines
(hereinafter: “the guidelines”) empower the Respondent to reduce the Claimant´s remuneration
retroactively. Therefore, the decision notified by the Respondent on 27 April 2020 cannot be
applied retroactively and the latter should pay the full salaries of March and April 2020.
29. With regard to the salary of May 2020, the Claimant underlined that the guidelines did not
determine that the COVID-19 outbreak was a force majeure situation. Moreover, the Claimant
stated that financial problems cannot be invoked as justification for non-compliance with an
obligation. In addition, the Claimant held that the Respondent did not provide evidence proving
an alleged force majeure situation, on the contrary, “the fact that the Respondent paid the
Claimant nearly a quarter of million of USD just five days after the latter put the former in default
implies that there is no force majeure situation and that the Respondent had no financial
problems that would require cutting the Claimant´s salary by half”.
30. Furthermore, the Claimant stated that the Respondent failed to provide evidence of its precarious
financial situation caused exclusively by the COVID-19 and that the decision to reduce salaries
applies to the entire squad. Equally, according to the player, the Respondent failed to explain the
mechanism of reducing the salaries. In any case, said mechanism is clearly disproportionate
compared with other countries where the reduction is up to 25% of the monthly salary. The
Claimant added that he is not the only one who refused to accept a pay cut.
31. In reply to the claim, the Respondent maintained that after FIFA issued its circular letter 1714
dated 7 April 2020, they started evaluating their financial situation.
32. The Respondent held that on 14 April 2020, its officials called by phone all players (including the
Claimant) and technical staff in order to talk about a possible decrease of salaries and advance
payments due normally during the lockdown.
33. The Respondent explained having sent on 15 April 2020 an email to the Claimant and his agent
proposing a reduction of half of the salary until the resumption of football activities (cf. point 10.
above). The Respondent stated that the Claimant did not react to the proposal.
34. The Respondent held that due to the absence of any reaction from the Claimant and the critical
situation in Saudi Arabia, on 27 April 2020, it notified the Claimant the decision (cf. point 14.
above) to reduce his salary from USD 125,415 to USD 65,374 net until the activities will resume
in Saudi Arabia.
35. The Respondent stated that the Claimant had asked them authorization to leave Saudi Arabia
with his family to travel to his country during the interruption of the activities and the Respondent
did not object, even more it has facilitated all administrative procedure.
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36. Moreover, the Respondent argued that despite the club’s respectful behavior, the Claimant has
tried to take advantage of the club's critical financial situation due to COVID-19 by sending a
formal notice based on article 14bis of the RSTP, by means of which he claimed two full salaries.
According to the Respondent, by doing so, the Claimant sought to terminate his contract and to
become a free player disregarding the fact that the club recruited him from the club Dijon against
payment of a transfer fee of EUR 6,000,000.
37. The Respondent argued that “the Covid-19 pandemic has created an unprecedented and
unforeseen situation so that FIFA regulations cannot resolve objectively ...That’s why, national
law which could take in consideration all the specificities of the situation caused by COVID-19 is
the only legal basis that can be applied to resolve any problem… The club has respectfully applied
both the national law and the criterions of FIFA circulars 1714 & 1720”.
38. According to the Respondent, the situation in Saudi Arabia due to the COVID-19 pandemic was
qualified as a case of force majeure. The Respondent underlined that “the Saudi government has
declared a lockdown and a strict curfew with a ban on movement between cities; closed all air,
land and sea borders; almost total suspension of professional activities except for food and
pharmaceutical sectors. The pandemic had as an immediate and direct effect on the total
suspension of sports activities in Saudi Arabia including even the prohibition of individual and
group training which correlatively prevented the execution of the employment contract and the
players no longer carried out their professional activities”.
39. The Respondent stated that the majority of its revenues ceased during the entire period of the
suspension of football activity in Saudi Arabia, i.e. from 15 March 2020 until June 2020. In this
regard, it referred to and enclosed the following evidence:
1) Declaration of the Saudi Minister of Finance dated 25 March 2020 according to which the
budget allocated initially to sport will be reduced and reallocated to the efforts made by the state
to the fight against the COVID19;
2) Correspondence notified by the national league to clubs in order to inform them that after an
analysis of the financial situation following the suspension of sporting activities it appears that
the pandemic has considerably affected financial resources which will necessarily generate a
significant reduction in the contribution allocated to the clubs and which will last throughout the
2020/2021 sports season; and
3) Report done by an independent accounting firm concluding that “there is a 60% loss of
income during the first 6 months in 2020 and proves irrefragably that the club by decreasing
players’ salary at 50% of the amount over 20,000 SAR has taken a just and fair decision despite
the very bad financial situation”. According to the club, at the exchange rate applicable on 22
November 2020, SAR 20,000 is equivalent to USD 5,329.86.
40. Moreover, the Respondent held that during the period of suspension of football activities it
guaranteed the Claimant and his family adequate insurance coverage and even assisted him in
his departure from Saudi Arabia.
41. The Respondent stated that the Minister of Human Resources and Social Development added on
6 April 2020 an amendment to the labour law (13/08/1441) providing that during the following
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6 months due to the COVID-19 pandemic, which represents a force majeure situation, salaries
and financial benefits will be reduced by no more than 40% of the full salary. The Respondent
held that in application of this national law, the club could have reduced the salaries of the
Claimant for 6 months (i.e. by USD 376,245) while the reduction was made for only 3 months
and 15 days up to 50% or the equivalent of USD 281,570. The Respondent underlined that the
measure taken by the club has been more beneficial to the Claimant than the national labour
law.
42. The Respondent alleged having tried on several occasions to discuss the issue of salary cuts with
the Claimant, i.e. emails sent to the player on 15, 17 and 19 April 2020, to no avail. Moreover,
the Claimant, through his agent, had led the Respondent to believe that the player’s lawyer
would respond to the club’s proposal shortly, but in vain. A discussion by videoconference was
even proposed by the Respondent (cf. the email sent on 19 April 2020, point 12. above) without
any reaction from the Claimant or his entourage. From there the Respondent made its unilateral
decision to reduce the Claimant’s salaries to 50% of the amount over SAR 20,000.The
Respondent claimed that this reduction is reasonable, limited in time, proportionate and intended
for all club employees.
43. The Respondent deemed that the reduction is proportional to the financial situation of the
Claimant which will not be seriously affected since it is temporary (3 months and 15 days), and
only represents 20% of the player’s annual salary value, and especially that the player will receive
the salary net of all charges, while keeping the other financial benefits.
44. In this regard, the Respondent claimed that the majority (83%) of the employees of the
professional football team accepted the reduction namely: Technical, medical and administrative
staff (13 persons) and 28 players out of 35. The Respondent further stated that all employees
who accepted the salary reduction signed the club's decision. The Respondent emphasized that
the reduction was not discriminatory in nature and was not directed solely against the Claimant.
In conclusion, according to the Respondent the reduction applied during the period of the
suspension of football activities was made in accordance with FIFA criterions and taking into
account the situation of the club and the employees.
45. The Respondent argued that despite the payment of the outstanding amounts, the Claimant
sought to abandon his obligations and refused to return to Saudi Arabia and resume training
with the club by declining to take the flight twice (i.e. 25 and 30 June 2020). The Respondent
stated that finally the Claimant returned to Saudi Arabia on 12 July 2020, i.e. with a delay of 17
days and as a consequence, it sanctioned the player for being absent from training from 26 June
2020 until 10 July 2020 according to the club´s disciplinary regulations, as follows:
5% of the Claimant´s monthly salary related to June 2020 for each day of absence from 26
to 30 June 2020 providing a total of 20% amounting to USD 13,074 and
5% of the Claimant´s monthly salary related to July 2020 for each day of absence from 1 to
8 July 2020 providing a total of 40% amounting to USD 50,166.
The Respondent maintained having notified the disciplinary sanctions to the Claimant by email
and since the latter did not appeal them, they became final and binding.
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46. The club argued having calculated the disciplinary sanctions on the basis of the revised salary and
not on the basis of the initial salary, which demonstrates the good faith of the club respecting
the player´s rights.
47. The Respondent explain that the salary for the months of March, April and May 2020, by applying
the salary reduction of 50% to the amount over SAR 20,000, would amount to the following:
March 2020: USD 95,393 equivalent to SAR 358,106, composed as follows:
- from 1 to 15 March: USD 62,707 equivalent to SAR 235,404;
- from 16 to 31 March: USD 32,685 equivalent to SAR 122,702;
April 2020: USD 65,371 (SAR 245,404);
May 2020: USD 65,371 (SAR 245,404).
48. Regarding June 2020, “the base salary for the month of June is USD 125,415 (SAR 470,306),
which after application of the COVID-19 reduction becomes USD 65,385 (SAR 245,404). The
club applied the disciplinary sanction of 20% of the salary for an amount of USD 13,088 (SAR
49,080). To this it added a road fine of USD 520 (SAR 1,950) which the Claimant authorized the
Respondent to deduct from his salary of March 2020, but at the end was deducted from his
salary of June 2020. Thus, the exact value due for the June salary is USD 51,777 (USD 65,371 –
USD 13,074 – USD 519 = USD 51,777)”.
49. Regarding July 2020, “the Respondent explained that after applying the disciplinary sanction of
35% of the salary, the amount of USD 67,977 was due (i.e. USD 104,580 – USD 36,603 = USD
67,977). Furthermore, it maintained that contrary to what the Claimant alleged, the latter asked
the Respondent to suspend the transfer of his monthly salary of July 2020 because of a problem
with updating the bank account”. This fact is corroborated by a statement signed by the player
with his imprint in which he clearly attests: "I acknowledge that my bank account in Arab
National Bank" ANB "IBAN SA0330400108071706210018 is not working and I requested SR
10000 in cash until I update my bank account information to receive my monthly salaries and
down payment”. Until the date on which the Respondent presented its position to the claim, the
Claimant had not updated his bank account and did not notify the Respondent any further to
this effect.
50. The Respondent reiterated having made a first payment of salaries for the months of March,
April and May 2020 on 11 June 2020, for a total amount of USD 226,136 and, on 30 June 2020,
a second payment related to the month of June 2020. The Respondent is therefore of the opinion
to have completely respected its financial obligations towards the Claimant, which makes his
complaint unfounded.
51. The Respondent concluded that the unilateral salary reduction was done respecting national law
and FIFA’s criteria and that the Claimant received all his financial dues until 30 June 2020 (i.e.
USD 277,912) after applying the salary decrease and the disciplinary sanctions. The Respondent
added that with regard to July’s salary the player has to notify the updated bank details.
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1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as: “the Chamber or the
DRC”) analysed whether it was competent to deal with the case at hand. Taking into account the
wording of art. 21 of the June 2020 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.
2.
Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules
and emphasised 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, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes with an
international dimension between players and clubs, such as the present one, which involves a
French/Tunisian player and a Saudi Arabian club. The DRC therefore confirmed its competence to
deal with the matter at stake and noted that, in any event, none of the parties had raised any
objection in this respect.
3.
In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations on
the Status and Transfer of Players should be applicable to the present matter. In this respect, the
Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players, and considering that the claim was lodged on
22 July 2020, the June 2020 edition of the aforementioned regulations (hereinafter: “the
Regulations”) is applicable to the matter at hand.
4.
With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well as all
the documents contained in the file. However, the Dispute Resolution Chamber emphasized that
in the following considerations it will refer only to facts, arguments and documentary evidence,
which it considered pertinent for the assessment of the matter at hand.
5.
In this respect, the Chamber acknowledged that, on 8 August 2019, the parties entered into a
contract, valid as from 7 August 2019 until 30 June 2022, according to which the player was
entitled to the remuneration quoted in point I. 3. above.
6.
Thereafter, the Chamber noted that the Claimant lodged the present claim before FIFA for
outstanding remuneration related to the monthly salaries of March, April, May, June and July
2020, maintaining that a total amount of EUR 380,104 remained outstanding (cf. point I. 24.
above for detailed breakdown of the amended claim). In this regard, the Chamber observed that
the Claimant particularly contested the application of the unilateral salary reduction made by the
Respondent.
7.
Conversely, the Chamber noted that, in its reply, the Respondent acknowledged part of its debt
for the monthly salary of July 2020 only, whereas it considered that there is no legal basis for most
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of the player’s requests. In particular, the club maintains that it performed certain partial
payments, that certain salary reductions were legitimately done in view of the economic effects
related to the COVID-19 pandemic and in line with national law as well as the FIFA guidelines,
and that it applied two disciplinary sanctions.
8.
In continuation, the Chamber acknowledged that on 15 April 2020 the Respondent first proposed
the salary reduction to the Claimant.
9.
In this respect, and prior to further address the issue of the unilateral alteration of the player’s
salary for the period between mid-March and June 2020, the DRC held that, in any case, a salary
variation could not be applied retroactively. While the club’s respective decision to reduce his
salary was notified to the player on 27 April 2020, the DRC noted that the player had not reacted
to the club’s identical proposal of 15 April 2020, despite two remainders from the club. Had the
player immediately informed the club that he would not accept the proposal, the Respondent
would have been in a position to inform him of its unilateral decision at an earlier stage.
Consequently, the Chamber was of the opinion that the principle of non-retroactivity should be
applied as of the date of the communication of the proposal to the player, rather than as of the
notification of the relevant decision. Therefore, the Chamber held that the salary of March 2020
and half of the salary of April 2020 (i.e. until the Respondent´s proposal) cannot be subject to a
possible reduction and hence the Respondent should pay them in full to the Claimant. This means
that for the respective period of time the player was entitled to USD 188,122 (i.e. USD 125,415
for March 2020 and USD 62’707 for half of April 2020).
10. The foregoing being established, the Chamber went on to examine the Respondent’s arguments
in relation to the COVID-19 pandemic and its effects on the club’s income and the player´s
remuneration.
11. In this regard, the DRC wished to refer to the fact that, in light of the worldwide COVID-19
outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing
appropriate guidance and recommendations to member associations and their stakeholders, to
both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response
is harmonised in the common interest. Moreover, on 11 June 2020, FIFA issued an additional
document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant
questions in connection with the regulatory consequences of the COVID-19 outbreak and
identifies solutions for new regulatory matters.
12. In this respect, the Chamber underlined that, according to the COVID-19 Guidelines, clubs and
employees (players and coaches) are strongly encouraged to work together to find appropriate
collective agreements on a club or league basis regarding employment conditions for any period
where the competition is suspended due to the COVID-19 outbreak.
13. Equally, the Chamber recalled that, as per the said document, where clubs and employees cannot
reach an agreement, a unilateral variation of the terms of a contract may only be possible if the
applicable national law permits it or in case it is envisaged by an existing collective (bargaining)
agreement signed between clubs and players representatives. If the applicable national law does
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not address the situation or collective agreements with a players’ union are not an option or not
applicable, unilateral decisions to vary terms and conditions of contracts will only be recognized
by FIFA’s Dispute Resolution Chamber (DRC) or Players’ Status Committee (PSC) where they were
made in good faith, are reasonable and proportionate.
14. With this line of principles in mind, and while noting that, undisputedly, no common agreement
had been found between the parties, the Chamber determined that, at first, it hadto establish
which law was applicable to the contract at the basis of the dispute at stake.
15. In this respect, the Chamber observed that, following item 3 of the contract, “The two Parties
shall comply with and implement the laws, circulars and regulations issued by FIFA”. Moreover,
the DRC observed that item 14 of the contract stated “… 1. The two parties declare that they
have taken note of SAFF and FIFA regulations and circulars before signing this contract and that
they are obliged to implement them. (…) 3. The provisions of Professional Players´ status and
transfer regulations shall apply to all matters not provided for in this contract (…).”
16. In view of the above, the Chamber noted that it is beyond any doubt that the contract does not
refer to Saudi Law as applicable law, but rather explicitly to the FIFA Regulations, namely the
Regulations on the Status and Transfer of Players, as well as to the SAFF (Saudi Arabian Football
Federation) regulations. Therefore, the DRC concluded that since the parties explicitly chose the
FIFA regulations as governing law, this set of rules are the primary source of law that is applicable
to the contract at stake. Consequently, Saudi law could not be used to justify the unilateral
alteration of the terms of the contract.
17. After establishing the applicable law to the relevant contract, the Chamber referred once again
to the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, in particular, when referring to
variations of employment agreements. The Chamber reiterated that said documents established
a three level analysis in order to determine if the relevant variation could be recognised or not, i.e.
a) the parties are able to reach an agreement; if not applicable, b) national law or a possible
collective (bargaining) agreement is applicable and does address the situation; if not applicable or
situation not addressed, c) the unilateral variation was made in good faith, was reasonable and
proportionate.
18. After duly taking note of all of the aforementioned criteria, the Chamber highlighted that in the
matter at stake, the parties were not able to reach an agreement and national law is not applicable
to their employment relationship. Therefore, the Chamber concluded that the third level
established by the FIFA COVID-19 Guidelines and FIFA COVID-19 FAQ should be taken into
account to assess the unilateral variation of the player’s salaries.
19. In other words, the DRC should determine whether the unilateral reduction of the salary
performed by the Respondent was made in good faith, was reasonable and proportionate.
20. First, the DRC focused its attention on the principle of good faith when it comes to unilateral
decisions to vary contractual terms. Indeed, the members of the Chamber concurred that this
principle is of paramount importance when it comes to recognize a decision of this nature.
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21. With this in mind, the members of the Chamber further referred to art. 12 par. 3 of the Procedural
Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof.
22. Within this context, and after duly analyzing the evidence gathered during the course of the
investigation, the members of the Chamber considered the following facts:
on 15 April 2020, the Respondent sent the proposal to the Claimant, which the latter never
answered;
on 17 April 2020, the Respondent sent a new email to the Claimant and his agent requesting
his feedback in connection to the proposal, again, to no avail;
on 19 April 2020, the Respondent sent another email to the Claimant and his agent requesting
his feedback in connection to the proposal and inviting him for a conference call;
on 20 April 2020, the Claimant´s agent replied to the Respondent informing that his lawyer
would contact the club “tomorrow or after tomorrow”, which he never did;
on 27 April 2020, the Respondent notified the Claimant the decision to reduce the salary in
accordance with the proposal.
23. The members of the Chamber pointed out that from the evidence at disposal it was clear that the
Respondent tried several times to discuss the proposal with the Claimant before proceeding to
unilaterally reduce his salaries, to no avail.
24. In addition, the Chamber stated that irrespective of the fact that national law is not applicable to
this dispute, in accordance with the amendment to the labor law made by the Saudi Arabian
Ministry of Human Resources and Social Development on 6 April 2020, it appears that, had it
been applicable, the Respondent could possibly have reduced the Claimant´s salary for 6 months,
but instead it only performed said reduction until the end of June 2020, i.e. over a period of 3.5
months.
25. What is more, the DRC underlined that on 20 April 2020, after the second remainder, the
Claimant´s agent replied to the Respondent showing some readiness to discuss the proposal,
however, without any follow-up. This action made the Respondent wait more time. The DRC
further stated that the Claimant did not object to his salary reduction during an important period
of time. In particular, the DRC highlighted that on 6 May 2020, 9 days after notification of the
decision concerning the variation of the contract, the player contacted the club informing them
about his departure to his home country, without referring to his salary reduction. Indeed, it was
only one month later, i.e. on 6 June 2020, that the player for the first time requested the full
salary to the Respondent.
26. Moreover, the Chamber also considered the fact that, despite its preference for their players to
remain in Saudi Arabia during the suspension of the championships, the Respondent did not
object to the player’s decision to travel to Tunisia in May 2020.
27. As a result, the Chamber was of the opinion that since the club offered an agreement (i.e. the
proposal), tried several times to discuss its terms with the player without success and the latter
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never objected to the salary reduction before he left the country, it can be concluded that the
Respondent acted in good faith.
28. In continuation, the DRC analyzed if the unilateral variation of the Claimant’s salary performed by
the Respondent was reasonable and proportionate.
29. In this respect, the Chamber reiterated that Saudi law is not applicable to the matter at stake.
Therefore, the latter cannot be used to justify the proportionality of the reduction by 40% applied
by the club, which appears to have been established in accordance with said law.
30. As a consequence, the DRC concluded that it would have to assess what salary reduction it
considered to be reasonable, taking into account the specificities of the matter at stake.
31. At this stage, the DRC pointed out that during the investigation, the player´s legal representative
indicated that a salary reduction of 25% would appear to be proportionate.
32. The Chamber deem that such position coming from the Claimant deserves particular attention
and should therefore be duly considered. Starting from this basis, and while considering the club’s
stance as described above, as well as the fact that the pandemic certainly had an impact on the
clubs’ financial situation worldwide, the DRC concluded that, in view of the specific circumstances
at hand, in the present case a reduction of 25% of the player´s salary during the suspension of
the championship had to be seen as reasonable and proportionate.
33. In view of the foregoing, the Chamber established that during the period from 16 April 2020 (i.e.
the day after the proposal) until 30 May 2020, the Claimant is entitled to receive from the
Respondent a salary equivalent to 75% of the originally agreed salary, i.e. USD 141,092 (i.e. USD
47,031, equivalent to 75% of half the salary for April 20, and USD 94,061, equivalent to 75% of
the full salary for May 20).
34. As to the salary of June 2020, the DRC held that by applying the accepted reduction by 20% as
for the salary of half of April and May 2020, the Claimant would be entitled to receive the amount
of USD 94,061.
35. In this respect, the DRC took note that the Respondent imposed four disciplinary sanctions on the
Claimant, i.e. fines for a total amount of USD 13,074 for being absent from training from 26 to
30 June 2020.
36. In this context, the Chamber referred to the content of item 8 of the contract which regulates the
imposition of sanctions and establishes that the Respondent may take decisions and issue
disciplinary sanctions against the Claimant in case of violating his contractual obligations, without
prejudice to regulations, provided that it shall inform the Claimant in writing, and the latter may
object according to the SAFF regulations and internal rules.
37. What is more, the DRC took note that on the one hand, the Respondent enclosed the SAFF
regulations to his reply to the claim and on the other hand, the Claimant was informed about the
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content of said regulations and the internal regulations of the club based on item 5.20 of the
contract.
38. The DRC observed that in accordance with item 8 of the contract, the Respondent informed the
Claimant in writing about the violation of his contractual obligations, i.e. being absent from
training.
39. In continuation, the members of the Chamber analyzed if the Claimant´s right to be heard was
respected during the disciplinary procedure.
40. In this respect, the DRC noted that the Respondent sent an individual email to the Claimant´s
lawyer for each day of absence enclosing a copy of the relevant decision, which expressly provided
for the player´s right to appeal.
41. At this stage, the DRC deemed that the decision imposing a disciplinary sanction for the first
absence could be surprising for the player, but not the subsequent three decisions.
42. In light of the aforementioned, the Chamber decided not to take into account the disciplinary
sanction imposed on the Claimant due to his absence on 26 June 2020 but to accept the
disciplinary sanctions imposed by the Respondent for the player´s absence from 27 to 30 June
2020.
43. Therefore, the DRC concluded that the fines which were validly imposed on the Claimant due to
his absence from 27 to 30 June 2020 amounted to USD 9,800.
44. As a result, the DRC decided that the Claimant was entitled to receive from the Respondent an
amount of USD 84,261 (i.e. USD 94,061 minus USD 9,800) as remuneration for the month of
June 2020.
45. In continuation, the DRC focused its attention on the monthly salary of July 2020 and stated that
according to the item 4.4 of the contract, the Claimant was entitled to receive an amount of USD
104,580 from the Respondent.
46. The Chamber recalled that the July 2020 salary was not subject of any reduction.
47. However, the DRC took note that the Respondent imposed another disciplinary sanction on the
Claimant for being absent from training the first eight days of July 2020.
48. In this context, the DRC reiterated its previous considerations (cf. points II. 36. to II. 41. above)
that the disciplinary proceedings were done in accordance with the SAFF regulations and internal
club‘s rules and that the Claimant´s right to be heard was respected.
49. As a consequence, the Chamber decided to accept the calculation made by the Respondent and
concluded that the Claimant was entitled to receive an amount of USD 67,977 as monthly salary
related to the month of July 2020 (i.e. USD 104’580 minus USD 36,603 as fine).
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50. At this stage, the Chamber summarized that from March to July 2020 the Claimant was entitled
to receive from the Respondent the total amount of USD 481,452 as remuneration composed as
follows:
- USD 188,122 as monthly salaries corresponding to March 2020 and the first half of April 2020;
- USD 141,092 as monthly salaries corresponding to the second half of April 2020 and May
2020;
- USD 84,261 as monthly salary corresponding to June 2020; and
- USD 67,977 as monthly salary corresponding to July 2020.
51. However, as to the final calculation of the outstanding remuneration in favor of the Claimant, the
Chamber observed that, during the course of the investigation, the Respondent alleged having
made two payments to the Claimant:
1) on 11 June 2020: USD 226,136 (allegedly related to the salaries of March, April and May
2020) and
2) on 30 June 2020: USD 51,930 (allegedly related to the salary of June 2020).
52. In this respect, the DRC took note that the Claimant confirmed having received the first payment
whereas he did not make any comment regarding the second one.
53. The DRC decided to analyze in detail the evidence provided by the Respondent regarding the two
aforementioned payments. In this regard, the Chamber noted that the Respondent submitted two
identical bank orders for the aforementioned amounts and two identical confirmations of the
bank transfers. The Chamber pointed out that the first payment of USD 226,136 was ordered and
transferred on the same date, whereas the second payment of USD 51,930 was ordered on 30
June 2020 and transferred on 2 July 2020.
54. In view of the above, the Chamber concluded that since the evidence provided by the Respondent
is identical and exhaustive and the Claimant acknowledged receipt of the first payment while
remaining silent regarding the receipt of the second payment, there is no reason for it not to
consider the second payment. Therefore, both payments for a total amount of USD 278,066 (i.e.
USD 226,136 + USD 51,930) should be considered as paid by the Respondent.
55. In view of all the above, the Chamber deducted the aforementioned partial payments, leading to
a total due amount of USD 203,386 (i.e. USD 481,452 minus USD 226,136 minus USD 51,930).
56. As a result, the Chamber established that, in accordance with the principle of pacta sunt servanda
the Respondent shall pay to the Claimant the total outstanding amount of USD 203,386.
57. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a.
from the respective due dates taking into account the partial payments made by the Respondent
and allocating these to the earliest outstanding payment under the contract, and until the date of
effective payment.
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58. Furthermore, taking into account the previous considerations, the Dispute Resolution Chamber
referred to par. 1 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.
59. In this regard, the Dispute Resolution Chamber pointed out 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 and for the
maximum duration of three entire and consecutive registration periods.
60. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in the event
that the Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, following the notification of the present decision, communicates
the relevant bank details to the Respondent, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive registration
periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of
the Regulations.
61. Finally, the Dispute Resolution 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. 24bis par. 3 of the Regulations.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, NAIM SLITI, is partially accepted.
2.
The Respondent, AL ETTIFAQ CLUB, has to pay to the Claimant the total amount of USD 203,386
plus an annual interest of 5% as follows:
- on the amount of USD 51,148 from 1 June 2020 until the date of effective payment;
- on the amount of USD 84,261 from 1 July 2020 until the date of effective payment and
- on the amount of USD 67,977 from 1 August 2020 until the date of effective payment.
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).
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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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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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