Dispute Resolution Chamber
Texto da decisão
REF FPSD-2298
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 16 June 2021
regarding an employment-related dispute concerning the player Xavier Torres Buigues
BY:
Alexandra Gómez Bruinewoud (Uruguay) / (Netherlands), DRC Judge
CLAIMANT:
Xavier Torres Buigues, Spain
Represented by Alejandro Pascual Madrid
RESPONDENT:
Al-Arabi SC, Kuwait
Represented by Georgi Gradev
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REF FPSD-2298
I.
FACTS OF THE CASE
1.
On 1 July 2019, the Claimant and the Respondent concluded an employment agreement
(hereinafter: the contract), valid for a period of one sports season, i.e. until 31 May 2020.
2.
According to art. 6 of the contract, the player was entitled to a monthly salary ‘net of any
taxes’ as follows:
- USD 10,000 in the period between 1 August 2019 and 31 December 2019;
- USD 41,500 in the period between 1 January 2020 and 31 May 2020;
- USD 42,500 in the period between 1 June 2020 and “31” June 2020.
3.
Art. 10 of the contract contains the following clause: ‘The second party deserves bonus in
case the team wins a formal championship as same as the national players in the club’.
4.
5. On 3 September 2020, in view of the fact that the competition in Kuwait was temporarily
suspended due to COVID-19, the Claimant and the Respondent concluded an additional
agreement (hereinafter: the additional agreement), which was to be considered as an
appendix to the contract originally concluded on 1 July 2019.
5.
Based on the additional agreement, which the Claimant agreed to render his services to
continue rendering his services during the month of September 2020 without receiving his
monthly salary.
6.
Also, art. 5 of the additional agreement holds the following clause: ‘This agreement is
considered as an appendix to the contract that signed between the parties on 01/07/2019
and does not have any additional financial implications for the two parties’.
7.
On 21 September 2020, the Respondent won the Emir Cup.
8.
On 24 March 2021, the Claimant put the Respondent in default for the payment of the
amount of KWD 10,000, providing it a 15 days’ deadline to remedy its default, however to
no avail.
9.
On 5 May 2021, the Claimant gave the Respondent a final deadline of 5 days’ to remedy
its default, however again to no avail.
II.
PROCEEDINGS BEFORE FIFA
10.
On 15 April 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.
The claim of the Claimant
11.
The Claimant explains that indeed, he signed the additional agreement, which did not
entitle him to additional salaries for the month of September 2020, ‘however, this was,
obviously, without prejudice to any potential bonus in case of winning a title.’
12.
According to the Claimant, as a result of winning he Emir Cup, all players of the tram were
entitled to a bonus payment of KWD 10,000, as was confirmed by two captions of the
team, M. Ebrahim and Mr. Samali. Furthermore, the Claimant explains that the captains
stated that the players would be entitled to at least KWD 8,000 and that they themselves
had already received KWD 6,000.
13.
The requests for relief of the Claimant, as amended, were the following:
-
b.
To be awarded amount of KWD 10,000 ‘net of any taxes’, plus 5% interest p.a. as from
21 September 2020, as outstanding bonus payment for winning the Emir Cup on 21
September 2020.
Alternatively, to be awarded the amounts of KWD 8,000 or KWD 6,000, plus 5%
interest p.a. as from 21 September 2020, as outstanding bonus payment for winning
the Emir Cup on 21 September 2020.
Position of the Respondent
14.
In reply to the Claimant’s claim, the Respondent argued that the Claimant has already
received all his financial dues, ‘by signing a settlement agreement’ on 17 June 2020.
15.
The Respondent submitted a copy of the settlement agreement dated 17 June 2020, as
well as payment receipts, confirming that all amount sunder the settlement agreement are
paid.
16.
What is more, as per the settlement agreement, the Claimant was entitled to the total
amount of USD 220,000, payable in three instalments on 30 July, 30 August and 30
September 2020, which are all paid in the meanwhile. Moreover, the parties agreed upon
the following clauses:
‘By signing this settlement, the second party assures that he has dropped and waived all his
rights and he won’t ask for any further financial dues in the future, except for the financial
rights and entitlements referred to above with the settlement agreement’.
‘Also, by signing the agreement, the parties are prohibited from resorting to any judicial
authorities or local, regional or international associations to demand any rights except for
the financial rights and entitlements referred to above with the settlement agreement and
if any issues or complaints filed in advance by either party undertake to withdraw and
consider them as if they were not’.
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c.
Replica of the Claimant
17.
In his replica, the Claimant denies the allegations of the Respondent and explains that the
settlement agreement was signed before the additional agreement was signed, and can
therefore not be of influence on the period covered by the additional agreement.
18.
What is more, the Claimant explains that the Respondent did not deny that a bonus of
KWD 10,000 was indeed due. The player further explains that after 31 May 2020, he was
for a few months unemployed, ‘however that almost three months later, once the
competition in Kuwait restarted and the Player was still a free agent, the Club requested
the Player to join the team for the Emir Cup which took place along September 2020.’ For
this reason, the parties signed the additional agreement.
19.
Additionally, the Claimant argued that the Respondent on it social media account posted a
message, confirming that an amount of KWD 100,000 would be split among the football
players of the first team (17 in total), for winning the Emir Cup. This would mean that the
Claimant was at least entitled to KWD 5,882.
20.
Also, the Claimant argues that the Finance Director of the Club, as well as the Club’s
Manager and the team’s captain, confirmed to him that he was indeed entitled to a bonus
for winning the Emir Cup.
21.
In conclusion, the Claimant insisted on his claim.
d.
Duplica of the Respondent
22.
In its duplica, the Respondent confirmed again the existence of the settlement agreement.
23.
Moreover, the Respondent confirms that on 3 September 2020, the Kuwaiti Championship
ended and that the Respondent kept on playing in the Emir Cup, as a result of which the
parties concluded the additional agreement.
24.
The Respondent is of the opinion that the Claimant did not substantiate his claim that he is
entitled to the claimed bonus amount. In this respect, the Respondent points out that clause
10 of the contract refers to a championship and not to a cup, and can therefore not serve
as the legal basis of the claim.
25.
What is more, the Respondent denies that it promised its players that it would pay a bonus
for winning the Emir Cup, nor that it effectively paid said bonuses to its (domestic) players.
Also, according to the Claimant, the settlement agreement is clear in its wording that the
Claimant ‘won’t ask for any further financial dues in the future’, which is also reflected in
art. 5 of the settlement agreement.
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III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
26.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as DRC
judge) analysed whether she was competent to deal with the case at hand. In this respect,
it took note that the present matter was presented to FIFA on 15 April 2021 and submitted
for decision on 16 June 2021. Taking into account the wording of art. 21 of the 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
27.
Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. a) and b) of the
Regulations on the Status and Transfer of Players (edition February 2021), DRC judge is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between an Spanish player and a Kuwaiti club.
28.
Subsequently, the DRC judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (edition February 2021), and
considering that the present claim was lodged on 15 April 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
29.
The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the DRC judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which she may consider
evidence not filed by the parties.
30.
In this respect, the DRC judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
31.
Merits of the dispute
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the merits of the dispute. In this respect, the DRC judge started
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by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC judge emphasised that in the following
considerations she 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
32.
The foregoing having been established, the DRC judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute whether or not the
Claimant is entitled to a bonus payment of KWD 10,000 for winning the Kuwaiti Emir Cup.
33.
In this context, the DRC judge acknowledged that it her task was to determine whether or
not the Claimant had sufficiently substantiated its claim to be awarded an amount of KWD
10,000.
34.
In this respect, the DRC judge first wished to recall the basic principle of burden of proof,
as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming
a right on the basis of an alleged fact shall carry the respective burden of proof.
35.
Analysing the relevant contractual clause and the submissions of the parties, the DRC judge
first of all noted that the clause does not explicitly refer to the winning of the Emir Cup
leading to the payment of a bonus, but considered also that the winning of a national cup
can be categorized as a formal championship. As such, the DRC judge was convinced that
the Claimant had a valid contractual basis to claim the bonus for winning the Emir Cup.
36.
What is more, the DRC judge considered that the main argument of the Respondent,
namely that the settlement agreement signed in 17 June 2020 would prevent the Claimant
from claiming the bonus, could not be upheld. In this respect, the DRC judge pointed out
that said settlement agreement was signed before the Emir Cup took place, and that the
parties later on, on 3 September 2020, signed an additional agreement, based on which
the Claimant would render his services to the Respondent in the month of September 2020.
Based on the foregoing circumstances, the DRC judge concluded that the settlement
agreement cannot affect the Claimant’s potential right to receive a bonus based on article
10 of the contract.
37.
On the other hand, the DRC judge noted that the evidence provided by the
Claimant, i.e. WhatsApp conversations, are not entirely clear and unambiguous as to which
amount of bonus payment the Claimant would exactly be entitled to. However, based on
the statement made by the Respondent on social media, in which it was confirmed that an
amount of KWD 100,000 would be split among the football players of the first team (17 in
total), for winning the Emir Cup, the DRC judge concluded that the Claimant was entitled
to at least the amount of KWD 5,882.
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38.
As a result of the foregoing circumstances, the DRC judge concluded that the Claimant had
sufficiently demonstrated that he is entitled to a bonus payment in the amount of KWD
5,882.
ii. Consequences
39.
Having stated the above, the DRC judge turned her attention to the question of the
consequences of such unjustified non-compliance by the Respondent with its financial
obligations as per the contract.
40.
In view of all the above, the DRC judge decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent must fulfil its contractual obligations
towards the Claimant and is to be held liable to pay the Claimant the amount of KWD
5,882 as bonus payment.
41.
In continuation and with regard to the Claimant's request for interest, the DRC judge
decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount
of KWD 5,882 as from 22 September 2020 until the date of effective payment.
42.
The DRC judge concluded her deliberations in the present matter by rejecting any further
claim of the Claimant.
iii. Compliance with monetary decisions
43.
Finally, taking into account the consideration under number 41. above, the DRC judge
referred to par. 1 lit. and 2 of art. 24bis of the Regulations, which stipulate that, with her
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.
44.
In this regard, the DRC 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.
45.
Therefore, bearing in mind the above, the DRC 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.
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46.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
47.
The DRC 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.
d.
Costs
48.
The DRC judge referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the DRC judge decided that
no procedural costs were to be imposed on the parties.
49.
Likewise and for the sake of completeness, the DRC judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
50.
Lastly, the DRC judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Xavier Torres Buigues, is partially accepted.
2.
The Respondent, Al-Arabi SC, has to pay to the Claimant, the following amount:
- Kuwaiti Dinar (KWD) 5,882 as outstanding amount, plus 5% interest p.a. as from 22
September 2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid within 45 days of notification of this decision, the
following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of three entire and
consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not paid by the end of
the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the DRC Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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