Labour Disputes
Texto da decisão
REF FPSD-2794
Decision of the
Dispute Resolution Chamber
passed on 27 October 2021
regarding an employment-related dispute concerning the player Ricardo
Jorge Tavares Machado
BY:
Jon Newman (USA)
CLAIMANT:
Ricardo Jorge Tavares Machado, Portugal
Represented by Sérgio Araújo
RESPONDENT:
Al Taawoun, Saudi Arabia
Represented by Mohamed Rokbani and Ali Abbes
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I.
Facts of the case
1.
On 5 December 2017, the Portuguese player, Ricardo Jorge Tavares Machado (hereinafter:
the Claimant), and the Saudi Arabian club, Al Taawoun (hereinafter: the Respondent) signed
an employment contract (hereinafter: the contract) valid as from 2 July 2018 until 30 June
2020.
2.
Pursuant to art. 4 of the contract, the Respondent undertook to pay to the Claimant
remuneration in the total sum of USD 957,000 net, as follows:
3.
i)
USD 462,000 net, payable in 12 monthly instalments, in the amount of USD 38,500 net
each in the first year; and
ii)
USD 495,000 net, payable in 12 monthly instalments, in the amount of USD 41,250 net
each in the second year.
Additionally, in accordance with art. 4 of the contract the Claimant was entitled to the
following benefits:
i)
ii)
iii)
iv)
4.
5.
accommodation in a residential complex;
transportation;
2 round flight tickets; (economic class - Buraydah – Portugal – Buraydah, per
contractual year), for the use of the Claimant and of his family; and
annual vacation.
Clause 9 of the contract stipulated the following:
1.
“The Parties shall seek solving their disputes in amicable ways
2.
In case the Parties do not reach amicable settlement, the Saudi sport arbitration center
shall be the competent body for such dispute.”
On 30 June 2020, the parties concluded an extension agreement, by means of which the
term of the contract was extended from 1 July 2020 until 9 September 2020.
II. Proceedings before FIFA
6.
On 14 June 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
7.
According to the Claimant, 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.
8.
On 15 April 2020, the Respondent sent an email to the Claimant together with a proposal
agreement, which had to be signed within 48 hours, stipulating “in case of silence or refusal,
the club reserves the right to take unilateral decision in respect with FIFA”, the said agreement
inter alia referred to the following:
9.
-
“FIFA has decided that COVID-19 represents a major force which can suspend and stop
all the contractual obligations;
-
in accordance with FIFA recommendations to stop bad effects of this pandemic on the
financial situation of the clubs and to guarantee the minimum of the 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;
-
taken in account the very difficult financial situation and in order to preserve our
contractual stability the salaries will be reduced as follows:
•
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 15/03/2020 until the
activities will restarted”
On 16 April 2020, the Claimant informed the Respondent that it did not agree with the
proposed “COVID-19 Pandemic Agreement”.
10. On 19 April 2020, the Respondent sent an email to the Claimant mentioning the following:
“this is the Club proposal in respect of the current situation in this proposal, the club
considered all the financial abilities and we think this reduction considered the fair and the
equality between the staff members or players rights and the financial resources of the club
We hope finally that you understand this special situation and that we collaborate to skip
this temporary stage”
11. On 23 April 2020, the Respondent sent an email reminder to the Claimant, indicating that
the said agreement had to be signed within 48 hours.
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12. On 27 April 2020, the Claimant, via email, informed the Respondent that it had unilaterally
imposed the proposal on him, despite the fact that the Claimant was open to negotiate the
said proposal, and in the same correspondence sent an alternative proposal to the
Respondent, which was not accepted by the Respondent.
13. On 28 April 2020, the Respondent sent a notification to the Claimant, which, inter alia
stipulated the following:
“Unfortunately, you rejected our proposal and you submitted a proposal that did not take
into account at all the current circumstance and the necessity of solidarity between all parties
nor the global economic situation linked to this case of force majeure.
Thus, We inform you that we are obliged to apply a reduction in your salary from 15/03/2020
until the resumption of sports activity in Saudi Arabia as follows:
• 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 15/03/2020 until the activities
will restart.”
23-
45-
The player will receive this amount NET without any deduction or detention .
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 .
The contract will be extended until the new date of the end of season .
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 20192020 season .”
14. Thereafter, the Respondent paid to the Claimant the following amounts relating to his
outstanding salaries:
-
on 12 May 2020, the amount of SAR 121,016 as March 2020 salary;
on 14 June 2020, the amount of SAR 87,344 as April 2020 salary;
on 27 July 2020, the amount of SAR 87,344 as May 2020 salary;
on 27 August 2020, the amount of SAR 87,344 as June 2020 salary.
15. According to the Claimant his salaries for March, April, May and June 2020 were unlawfully
reduced and therefore the Respondent owes the Claimant the total amount of USD
63,053.10 net:
a)
b)
c)
the amount of USD 9,076.40, relating to part of the salary of March 2020;
the amount of USD 18,011.20, relating to part of the salary of April 2020;
the amount of USD 17,993.80, relating to part of the salary of May 2020; and
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d)
the amount of USD 17,971.70, relating to part of the salary of June 2020.
16. On 8 June 2021, the Claimant sent a notice of default to the Respondent requesting payment
of the abovementioned amounts relating to his salary, furthermore, claiming the amount of
SAR 170,000 as a winning bonus (match against Al–Alfayha during the 2019/2020 sporting
season), plus 5% interest p.a., granting it a deadline of 4 days, however with no avail.
17. The requests for relief of the Claimant, were payment by the Respondent of the following
amounts:
a)
b)
c)
d)
e)
USD 9,076.40, relating to part of the salary of March 2020;
USD 18,011.20, relating to part of the salary of April 2020;
USD 17,993.80, relating to part of the salary of May 2020;
USD 17,971.70, relating to part of the salary of June 2020; and
SAR 170,000 (as a winning bonus (match against Al–Alfayha during the 2019/2020
sporting season).
18. Additionally, the Claimant requested on the above amounts 5% interest p.a. from the
respective due dates until date of effective payment.
19. On 13 August 2021, the Claimant sent a further correspondence, amending its request for
relief as follows:
a)
b)
c)
d)
e)
USD 9,076.40 net, relating to part of the salary of March 2020;
USD 18,011.20 net, relating to part of the salary of April 2020;
USD 17,993.80 net, relating to part of the salary of May 2020;
USD 12,018.10 net, relating to part of the salary of June 2020;
SAR 50,000 as unpaid bonus.
20. Additionally, the Claimant requested 5% interest p.a. on the above amounts from the
respective due dates until date of effective payment.
b. Position of the Respondent
21. The Respondent first of all argued that the parties agreed to the exclusive jurisdiction of the
“Saudi Arbitration Center in Riyadh, Saudi Arabia to decide on employment related disputes
arising from the contract, therefore FIFA is not competent to deal with the matter at hand,
based on art. 9 par. 2 of the contract.”
22. Art. 9 par. 2 of the contract stipulated the following:
“In case the Parties do not reach amicable settlement, the Saudi sport arbitration center shall
be the competent body for such dispute.”
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23. The Respondent further stipulated that “the jurisdiction clause was well drafted in Art IX of
the contract was clear and exclusive in favour of the Saudi Arbitration Centre (SSAC); and (b)
The SSAC is an Independent arbitral tribunal, such as the Court of Arbitration for Sport (“the
CAS”)”.
24. According to the Respondent, it fulfilled all its obligations towards the Claimant.
25. The Respondent argued that the Claimant tried to benefit from the situation to force the club
to extend his contract for another season.
26. According to the Respondent, in accordance with the temporary salary review the Claimant
“received the following amounts net of any deduction despite being in Portugal during that
period and did not confer any service to the club”:
-
March 2021 – SAR 121,016, i.e. USD 32,270;
April 2021 – SAR 87,344, i.e. USD 23,291;
May 2021 – SAR 87,344, i.e. USD 23,291;
June 2021 – SAR 109,792, i.e. USD 29,277.
27. The Respondent indicated that the unilateral reduction in salary was made in good faith, in a
reasonable and proportionate manner, specifically after it tried “several times to discuss the
proposal and to negotiated with the Claimant before proceeding to unilaterally reduce his
salaries.”
28. The Respondent argued that the club lost all its income due to the COVID-19 pandemic and
had no other choice but to apply a unilateral deduction of the salary.
29. Furthermore, the Respondent stipulated the following:
“The reduction is proportional to the financial situation of the player which will not be
seriously affected since it is temporary (2 months and 11 days), and only represents less than
5 % of its contract and especially that the player will receive the net salary of all charges while
keeping the total benefit of other financial benefits such as car, accommodation and
insurance.”
30. The Respondent mentioned, “that the reduction applied during the period of the cessation
of football activities was made in accordance with FIFA criteria and taking into account the
situation of the club and the employees.”
31. The Respondent stated that the majority of its revenues ceased during the entire period of
the cessation of football activity in Saudi Arabia, i.e., from 15 March 2020 until June 2020.
In this regard, it referred and enclosed the following evidence:
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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 COVID-19; and
2)
Correspondence notified by the national league to clubs in order to inform them that
after an analysis of the financial situation following the cessation 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.
32. The Respondent stated that the Minister of Human Resources and Social Development
amended the labour law providing that during the following 6 months the COVID-19
pandemic, which represents a major force, salaries and financial benefits will be reduced by
40%.
33. The Respondent held that in application of this national law, it could reduce the salaries of
the Claimant for 6 months while the reduction was made for only 2 months and 11 days up
to 50%. The Respondent underlined that the measure taken by the club has been more
beneficial to the Claimant than the national labour law.
34. In respect of the Claimant’ salary for June, the Respondent argued that “the club paid to the
player 109.792 Saudi Riyal i.e., 29.277 USD i.e., 50% of the amount over 20,000 SAR until
21/06/2020 and paid him his full salary for the rest of the months days because the activity
resumed on 21/06/2020.”
35. The Respondent indicated that the Claimant failed to present any proof that the Respondent
is required to pay him any bonuses.
36. The Respondent requested that the FIFA DRC dismiss the claim of the Claimant.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
37. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
the Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 14 June 2021 and
submitted for decision on 27 October 2021. Taking into account the wording of art. 34 of
the October 2021 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.
38. Subsequently, the Single Judge 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 lit. b) of the Regulations on
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the Status and Transfer of Players (August 2021 edition), as well as art. 24 par. 1 of the
Procedural Rules, the Single Judge is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Portuguese player and a Saudi Arabian club.
39. However, the Single Judge acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies based on art. 9 par. 2 of the employment contract, which refers to the
Saudi Arbitration Center in Riyadh, Saudi Arabia (hereinafter: “the Saudi NDRC”).
40. Taking into account the above, the Single Judge emphasised that in accordance with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition February 2021), he is
competent to deal with a matter as such, unless an independent arbitration tribunal,
guaranteeing fair proceedings and respecting the principle of equal representation of players
and clubs, has been established at national level within the framework of the association
and/or a collective bargaining agreement. With regard to the standards to be imposed on an
independent arbitration tribunal guaranteeing fair proceedings, the Single Judge referred to
the FIFA Circular no. 1010, dated 20 December 2005.
41. Therefore, while analysing whether he was competent to hear the present matter, the Single
Judge considered that he should, analyse whether the employment contract at the basis of
the present dispute contained a clear jurisdiction clause.
42. In this respect, the Single Judge recalled that article 9 par.2 of the contract stipulated the
following:
“In case the Parties do not reach amicable settlement, the Saudi sport arbitration center shall
be the competent body for such dispute.”
43. Having examined the relevant provision, the Single Judge concluded that article 9 par.2 does
in principle constitute a clear and unambiguous jurisdiction clause in favour of the Saudi
NDRC.
44. However, after having analysed the information on file, the Single Judge noted that the
Respondent did not provide any documentary evidence on the basis of which it could be
concluded that the Saudi NDRC would be compliant with the minimum procedural standards
for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the
Status and Transfer of Players, in the FIFA Circular no. 1010 as well as in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations. In this regard, the Single Judge
pointed out that in particular, it could not be clearly established if the Saudi NDRC (fully)
respects the principle of equal representation.
45. On account of all the above, the Single Judge established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be rejected.
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46. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition), and
considering that the present claim was lodged on 14 June 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
47. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof. Likewise, the Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence
not filed by the parties, including without limitation the evidence generated by or within the
Transfer Matching System (TMS).
c. Merits of the dispute
48. Its competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations, he will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
49. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties on 5 December 2017, concluded an
employment contract valid as from 2 July 2018 until 30 June 2020
50. In this context, the Single Judge acknowledged that the Claimant claims that the Respondent
failed to pay him his salaries for the months of March, April, May and June 2020 and in this
regard noted that the Respondent argued that the Claimant’s salaries were reduced within
the context of the outbreak of the COVID-19 pandemic, by means of which the Respondent
were allowed to reduce the Claimant’s remuneration during the period March 2020 until 21
June 2020.
51. The Single Judge noted that the Claimant rejected the unilateral variation of salaries made by
the Respondent, and remarked that the Respondent maintained, inter alia, that the Claimant
failed to negotiate the said reduction and that the salary reduction was performed in
accordance with national law and FIFA´s guidelines.
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52. In this context, the Single Judge acknowledged that its task was to determine whether the
Respondent could validly reduce the Claimant’s salary during the period March 2020 until 21
June 2020.
53. Having said that, the Single Judge 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 has 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.
54. According to the FIFA COVID-19 Guidelines, unilateral decisions to vary the terms of an
agreement are allowed if they are made in line with national law or permissible within the
CBA structures. Thus, if the parties involved cannot reach an amicable settlement, or the issue
is not addressed in national law and CBA’s with a players’ union are not an option, a variation
to the contract can only be allowed if it is made in good faith, are reasonable and
proportionate.
55. The Single Judge noted that in the matter at hand, it appears that on 15 April 2020 the
Respondent sent the “COVID-19 Pandemic agreement” to the Claimant for signature and not
for discussion and/or negotiation, which agreement was consequently rejected by the
Claimant, whom then in return sent a counter-proposal to the Respondent, which was not
accepted.
56. Moreover, the Single Judge observed that - even though the Respondent argued that the
Saudi Arabian national law was applicable to the matter at hand and that it entitled the
Respondent to unilaterally reduce the Claimant’s salary with reference to the resolution it
submitted from the Minister of Human Resources and Social Development - it failed to prove
that such resolution resulted from negotiations between employers and employees.
57. Furthermore, the Single Judge decided that the Respondent did not manage to properly
discharge its burden of proof that the unilateral variation was done in accordance with the
FIFA COVID-19 Guidelines.
58. In view of all the above, the Single Judge established that the Respondent could not validly
justify the unilateral variation of the contract, and therefore it shall remunerate the Claimant
as agreed in the contract.
ii. Consequences
59. Having stated the above, the Single Judge concurred that the Respondent must fulfil its
obligations in accordance with the general legal principle of “pacta sunt servanda”.
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60. Consequently, the Single Judge decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration, in the amount of USD 56,781.20 net.
61. Furthermore, based on well-established jurisprudence as well as taking into account the
Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above amount
from the respective due dates until the date of effective payment.
62. As to the requested bonus in the amount of SAR 50,000, the Single Judge decided not to
award this amount to the Claimant – on the basis that there is no contractual basis to award
the said amount and that sufficient proof was not provided by the Claimant.
iii. Compliance with monetary decisions
63. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with his 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.
64. In this regard, the Single Judge highlighted that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist 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.
65. Therefore, bearing in mind the above, the Single Judge 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.
66. 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.
67. The Single Judge 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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d. Costs
68. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were
to be imposed on the parties.
69. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
70. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ricardo Jorge Tavares Machado, is partially accepted.
2.
The Respondent, Al Taawoun, has to pay to the Claimant, the amount of USD 56,781.20 net
as outstanding remuneration, plus 5% interest p.a. from the respective due dates until date
of effective payment as follows:
-
▪
on the amount of USD 8,980 as from 1 April 2020;
on the amount of USD 17,914.10 as from 1 May 2020;
on the amount of USD 17,914.10 as from 1 June 2020; and
on the amount of USD 11,973 as from 1 July 2020.
2.
Any further claims of the Claimant are rejected.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24bis 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 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
made by the end of the three entire and consecutive registration periods.
5. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
6. 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).
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