Labour Disputes
Texto da decisão
REF. FPSD-11828
Decision of the
Dispute Resolution Chamber
passed on 13 November 2023
regarding an employment-related dispute concerning
the player Mamadou Thiam
BY:
Calum Beattie, Scotland
CLAIMANT:
Mamadou Thiam, Senegal and France
RESPONDENT:
Arabi SC, Kuwait
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REF. FPSD-11828
I. Facts of the case
1.
On 2 July 2023, the French and Senegalese player, Mamadou Thiam (hereinafter: the
Claimant or the player) and the Kuwaiti club, Arabi SC (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: the contract) valid as from 1 July 2023 until
30 June 2025.
2.
Clause 2 of the contract reads as follows (quoted verbatim):
“1- [the club] pays to [the player] total sum of 212,270 KWD for this contract (two
hundred and twelve thousands and two hundred and seventy Kuwaiti Dinars only)
divided as follows:- 15470 KWD (fifteen thousands and four hundred and seventy Kuwaiti Dinars ) as
advance payment to be paid after receiving the player's international card from FIFA
(ITC) and registering in the Kuwait Football Association
- The rest of the amount is divided into monthly salaries to be paid at the end of each
month for a period of 24 as the following table
2023/2024 Salaries payments details
Description
The amount
First Payment
Last Payment
Salary
8,200 KWD
2024/2025 Salaries payments details
Description
The amount
30/7/2023
30/6/2024
First Payment
Last Payment
Salary
30/7/2024
30/6/2025
8,200 KWD
2- [the club] provides furnished housing for [the player] inside the club.
3-- [the club] provides a private car for [the player] to attend the training and
matches.
4- [the club] grants [the player] 4 flight ticket to and from its original country
(economy class) once during the season as
follow :
- One ticket for the player Mamadou Thiam.
- One ticket for the wife of the player.
- Two tickets for the children of the player.
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REF. FPSD-11828
5- [the player] deserves a bonus for achieve titles, same as his colleagues players.”
II. Proceedings before FIFA
3.
On 18 September 2023, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
4.
In his claim, the Claimant argued that the Respondent failed to comply with its financial
obligations under the contract by not paying his July 2023 salary and requested the
payment of the same in the amount of KWD 8,200.
5.
On 20 September 2023, the FIFA General Secretariat in accordance with art. 20 of the
Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), made
a proposal to the parties. Contextually, they were requested to either accept or reject the
proposal by 5 October 2023 and in the event that the Respondent rejected the proposal, it
should provide its response to the claim within the same deadline.
6.
On the same date, the player rejected the proposal made by the FIFA general secretariat.
7.
On 4 October 2023, the Claimant wrote to FIFA and states as follows (freely translated to
English):
“I would like to update the situation regarding the payment of my salaries, as of this
date and as I suspected Al Arabi SC Club has not paid the salaries for the month of
September.
This brings to two months the number of salaries I am owed by Al Arabi SC.
Since I signed on 01 July 2023 (I have received only one salary out of three). The
amount owed to date is 16400 KD (Kuwait Dinar) approximately 50,000 EUROS, or two
months salary. According to Article 14bis of the Regulations on the Status and
Transfer of Players , if Al Arabi SC "finds itself in breach of the law by failing to pay at
least two monthly salaries to the player on the due dates, the latter will then be
deemed to have the right to terminate his contract with just cause provided that he
has given written notice to the debtor club and has given him at least fifteen days to
honour all of his financial obligations. Alternative provisions in contracts existing at
the time of this provision coming into force may be considered”. This will also oblige
me to take action to obtain the full salary that would be due until the end of my
contract in June 2025.
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REF. FPSD-11828
I call upon FIFA's competent bodies to propose a rapid and effective solution that could
help me to get out of this situation in which I am today, without being paid.”
8.
On 6 October 2023, the FIFA general secretariat wrote to the player and asked him to clarify
by 12 October 2023 whether he had amended his claim and, in the affirmative, to indicate
the proper breakdown of the concepts and amounts claimed.
9.
On 9 October 2023, the Claimant modified his claim and indicated that the club in the
meantime paid July 2023 salary. In view of the foregoing, he requested payment of
September 2023 salary for KWD 8,200. The player further added the following “I would like
FIFA urge Al Arabi Club to pay me within 10 days (not 45 days as I rejected last time)”.
10. On 13 October 2023, the FIFA general secretariat acknowledged receipt of the amended
claim of the player and accordingly granted the club with an additional deadline to file its
position by 20 October 2023.
b. Position of the Respondent
11. In its response to the claim dated 20 October 2023, the club indicated the following:
“We would like to inform you that the player has received all his financial dues in
accordance with the contractual relationship he has with the club, starting with the
salary for July, August, and September (attached). Also, the salary for October has not
yet arrived. We are surprised that you are demanding a salary that has not yet arrived.
We also inform you that the September salary was disbursed in the amount of 6,888
KWD Kuwaiti dinars due to the activation of the club’s internal regulations regarding
excess weight.”
c. Additional comments of the Claimant
12. Upon request by the FIFA general secretariat of 24 October 2023, the Claimant
acknowledged on the same date a partial payment by the club of KWD 6,888 for the
September 2023 salary. However, he indicated that the club had still not paid KWD 1,312.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 18 September
2023 and submitted for decision on 13 November 2023. Taking into account the wording
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REF. FPSD-11828
of art. 34 of the March 2023 edition of the Procedural Rules, the aforementioned edition of
the Procedural Rules is applicable to the matter at hand.
14. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of
the Regulations on the Status and Transfer of Players (May 2023 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Senegalese/
French player and a Kuwaiti club.
15. Moreover, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition) and
considering that the present claim was lodged on 18 September 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
16. For sake of clarity, the Single Judge observed that the Respondent argued that one amount
was not yet due i.e., October 2023 salary. However, the Single Judge stressed that in
accordance with the claim, the player requested payment of his September 2023 (and not
October 2023) salary which felt due on 30 September 2023. Consequently, the Claimant’s
claim is admissible.
b. Burden of proof
17. 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
18. The competence and the applicable regulations having been established; the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments, and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
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REF. FPSD-11828
19. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that it pertains to a claim of a player against a club for
overdue payables in which the main dispute of the parties is to establish whether the
player is entitled to the remaining payment of his September 2023 salary for KWD 1,312.
20. The Single Judge observed that while the Claimant requested the full payment of his
September 2023 salary; the Respondent in turn indicated that the Claimant’s salary was
reduced to KWD 6,888 due to the activation of the club’s internal regulations regarding
excess weight.
21. In this respect, the Single Judge wished to point out that no evidence as to the internal
regulations were provided by the club. Equally, he underlined that it appears that said
unilateral deduction was made without a conduction of disciplinary proceeding, let alone
any proof of the alleged infringement committed by the player. In view of the foregoing,
the Single Judge concluded that the deductions to the salary were unlawfully made.
22. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant KWD 1,312.
23. Lastly, The Single Judge added that per the constant practice of the Dispute Resolution
Chamber, the player would also be in principle entitled to default interest over the
abovementioned amount as from the due date until the date of payment. However, as the
player filed no request for interest, the Single Judge was prevented from awarding such
concept in line with the general legal principle of ne ultra petita.
ii. Compliance with monetary decisions
24. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with 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.
25. 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.
26. 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
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REF. FPSD-11828
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
27. 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.
28. 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. 24 par.
8 of the Regulations.
d. Costs
29. 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.
30. 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.
31. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-11828
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mamadou Thiam, is partially accepted.
2.
The Respondent, Arabi SC, must pay to the Claimant KWD 1,312 as outstanding
remuneration.
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 art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-11828
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the
notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to
publish an anonymised or a redacted version (cf. article 17 of the Procedural Rules
Governing the Football Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
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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