Labour Disputes
Texto da decisão
REF. FPSD-14043
Decision of the
Dispute Resolution Chamber
passed on 11 July 2024
regarding an employment-related dispute concerning
the player Nicolas Milesi Van Lommel
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Michele COLUCCI (Italy), member
Mario FLORES CHEMOR (Mexico), member
CLAIMANT:
Nicolas Milesi Van Lommel, Uruguay
Represented by Estudio Leiza-Schurjin
RESPONDENT:
Ohod, Saudi Arabia
pg. 2
REF. FPSD-14043
I. Facts of the case
1.
On 5 September 2023, the Uruguayan player, Nicolas Milesi Van Lommel (hereinafter: the
Claimant or the Player) and the Saudi Arabian club, Ohod (hereinafter: the Respondent or the
Club) concluded an employment contract valid as from 6 September 2023 until 31 August
2025 (hereinafter: the contract).
2.
In accordance with clauses 5.1 and 5.3 of the contract, the Club undertook to pay the Player
the following amounts:
-
A net monthly salary of USD 20,833 from 6 September 2023 until 31 August 2024.
-
A net monthly salary of USD 20,833 from 1 September 2024 until 31 August 2025 in
case the Club would stay in the Yelo League for the season 2024/205 or a net monthly
salary of USD 41,666 in case the Club would promote to Roshin League for the season
2024/2024.
-
An “advanced payment” of USD 300,000 net payable on 1 January 2024.
-
An “advanced payment” of USD 300,000 net payable on 1 January 2025 and in the event
the Club would promote to the Roshin League the amount would amount to USD
500,000 net.
3.
In accordance with clause 5.5 of the contract the Player was also entitled to
accommodation, transportation and 4 round airline tickets on business class per year
(Jeddah – Montevideo – Jeddah).
4.
Clause 6 of the contract reads, inter alia, as follows:
“[…] 8. promptly provide the Player with all necessary assistance required to obtain
the Iqama (i.e. residence permit issued by the Saudi Arabian national authorities) as
well as any other travel visas which the Player may reasonably require from time to
time in order to exercise his freedom of movement.
[…]
16. cover all costs of the Player’s medical treatment and rehabilitation for the duration
of the Term, provided that such costs result from illness or injury and were incurred
pursuant to a referral by the Club doctor.”
5.
Clause 12 of the contract reads as follows (quoted verbatim):
“1. In the case of the Club unlawfully failing to pay thee Player at least two monthly
salaries on their due dates, the Player will be deemed to have a just cause to terminate
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REF. FPSD-14043
this Contract, provided that he has put the Club in default in writing and has granted
a deadline of at least 15 days for the Club to fully comply with its financial
obligation(s).
2. The parties agree that if either Party terminates the Contract with just cause or
without just cause during the season, the compensation for breach of this contract as
per the Regulations on the Status and Transfer of Players of FIFA.
3. dollars). The Club shall not terminate the contract due to the Player sustaining an
injury during play or training.
5. the validity of the Contract may not be made subject to a successful medical
examination and/or the grant of a work permit.
6. The Club shall not suspend, interrupt or delay the Player's remuneration due to the
Player sustaining an injury during play or training. The Contract may not be
terminated by either party during the sporting season in any circumstances, with the
exception of cases where: (a) there is just cause; and/or (b) the Parties have agreed to
terminate the Contract before the date of its expiry by mutual consent.
7. The Player shall nor, under any circumstances, waive salaries for work already
performed.
8. The Club shall notify the Committee in writing of -any termination of this Contract
without delay und within three (5) working days at the latest. The Club shall also notify
the League Organizer wherever so required under the relevant League Organizer
regulations”
6.
On 23 September 2023, the Player and a Club representative had discussions via the
application WhatsApp regarding the payment of the Player’s housing.
7.
Between October and November 2023, there were various discussions between the Player
and a Club representative via the application WhatsApp, in which the Player requested
several times the payment of the medical expenses he incurred.
8.
On 15 November 2023, the Player sent a letter to the Club, mentioning that since the injury
he suffered on 2 November 2023, the Club was not fulfilling its obligations, as the Player
had to pay the medical expenses and the housing as well as the Club failed to pay his
salaries. He felt “that the Club abandoned him during this process”. Additionally, he
mentioned his concerns as to the visa, which was to expire in December. The Player
requested a clarification of the situation.
pg. 4
REF. FPSD-14043
9.
On 4 December 2023, the Claimant put the Respondent in default and requested payment
of USD 59,026 corresponding to the salaries of September, October, and November 2023;
setting a time limit of 15 days in order to remedy the default. In addition, within the same
deadline, the Claimant requested the payment of the rent (USD 61,204), the hotel expenses
(USD 3,065) and the medical expenses incurred (USD 9,672).
10. On 20 December 2023, the Claimant sent a termination notice to the Respondent In
accordance with art. 14bis of the RSTP.
11. The Player confirmed FIFA that he remained unemployed.
II. Proceedings before FIFA
12. On 13 March 2024, 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
13. The Claimant lodged a claim against the Respondent for breach of contract. According to
the Player, the Club seriously breached the contract as:
-
It did not support him by paying his surgery resulting from an injury suffered
during the employment relationship. The Player indicated that he injured his
ankle during the terms of the contract and the Club did not comply with its
obligation to provide and pay medical assistance. The Player was forced to pay
for the medical expenses.
-
It did not pay his salaries until November 2023.
-
It did not pay the housing agreed.
-
It did not renew his work visa. After the termination of the contract, the Player
was illegally in Saudi Arabia, and he could not leave the country and had to ask
the Uruguayan embassy for help. This situation affected him emotionally.
14. The Player mentioned the following:
“The contractual breaches are significant, and the Arabian Club should be ordered to
pay not only the residual value of the contract and the expenses incurred, but also the
moral damages suffered during the entire duration of the labor relationship in Arabia.
pg. 5
REF. FPSD-14043
As mentioned above, the seriousness of the Arabian Club's noncompliance caused the
Player great anguish, causing him anxiety and depression, which merits that the Club
also be ordered to compensate the moral damages suffered.”
15. In support to the above, the Claimant referred to the Football Tribunal decision FPSD-2470
and mentioned that the DRC already admitted moral damages in a similar situation.
16. The Player was not able to sign a new contract due to the aforementioned situation, since
he did not feel
“psychologically fit to face a new challenge, due to the distrust and anguish that all
those events suffered in Arabia generated in him. This is why the player is seriously
considering professional retirement, despite his age of 31 years.
From the report made by the Licensed in Psychology Inés Pérez Puig dated March 7,
2024, it appears that the Player suffers from problems of anxiety, anguish, stress and
depression. Having been treated in 18 (eighteen) sessions between the months of
January, February and March of the present year. Report to be added in the chapter
of evidence.”
17. In view of the above, the Player considered that he had just cause to terminate the contract
under art. 14bis and 14 of the Regulations on the Status and Transfer of Players.
18. The Player requested the following:
-
Outstanding salaries until November 2023 of USD 59,026.
-
Compensation for breach of contract of USD 1,037,493 corresponding to the residual
value.
-
Medical expenses of SAR 35,880.
-
Expenses for housing of SAR 229,615.
-
Airline ticket of USD 22,570.
-
Moral Damages of USD 100,000.
19. To support the above, the Player provided inter alia the following documents:
-
Technical report prepared by Psychologist Inés Pérez Puig, on 7 March 2024, in
which she informed about the Player’s medical situation.
pg. 6
REF. FPSD-14043
-
Copy of living expenses in Jeddah: (i) SAR 1,100 as rent payment from October
2023 to 30 September 2024, (ii) SAR 213,515.42 as rent payment from October
2023 to 30 September 2024 and SAR15,000 as security deposit payment. The
Claimant also provided the order payment made on 28 September 2023.
-
Copy of medical expenses from King Abdulaziz University Hospital of SAR 15,180.
-
Copy of medical expenses from Mafasel Clinic of SAR 20,700.
-
Proof of payment from the Travel Agency for the airline tickets of USD 14,300 and
USD 8,270.
-
Report of the Ambassador of Uruguay in Saudi Arabia.
20. The Claimant requested the following relief:
“1. Consider me as having been presented in due time and farm and as having
accredited the representation invoked.
2°. To consider the claim against the OHODF.C. Club as formulated, in the terms
contained in this document.
3°. By virtue of the termination for just cause of the employment contract, the OHOD
F.C. Club is condemn to pay the Player the following amounts:
3.1. USD 1:196,519 (UNITED STATES DOLLARS ONE MILLION ONE HUNDRED AND
NINETY-NINETY-SIX FIVE HUNDRED AND NINETY-NINE), corresponding to USD 59,026
for wages owed; USD 1:037,493 for residual value of the contract USD 100.000 for
moral damages, plus interest al 5% per annum.
3.2. USD 22,570 (UNITED STATES DOLLARS TWENTY TWO THOUSAND FIVE HUNDRED
SEVENTY), far airline tickets, plus interest al 5% per annum;
3.3. SAR 229,615 (TWO HUNDRED AND TWENTY-NINE THOUSAND AND SIX HUNDRED
AND FIFTEEN SAUDI RIALS), as housing expenses, plus interest al 5% per annum;
3.4. SAR 35,880 (THIRTY FIVE THOUSAND EIGHT HUNDRED EIGHTY RIAL SAUDI), for
medical expenses, plus interest al 5% per annum.
4°) Payment shall be made to the Player to the Player's bank account in accordance
with the Bank Account Form attached as ANNEX "N".
5°) The defendant Club be imposed the maximum sanctions provided far in the
current Regulations, considering its fraudulent conduct with the Player.”
pg. 7
REF. FPSD-14043
b. Position of the Respondent
21. Despite being invited the Respondent did not provide its position to the claim.
pg. 8
REF. FPSD-14043
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 13 March 2024 and submitted
for decision on 11 July 2024. Taking into account the wording of art. 34 of the March 2023
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.
23. Subsequently, the members of the Chamber 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 (June 2024 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 an Uruguayan
player and a Saudi Arabian club.
24. Finally, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (June 2024 edition), and considering
that the present claim was lodged on 13 March 2024, the February 2024 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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
26. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
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REF. FPSD-14043
i. Main legal discussion and considerations
27. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that the main dispute of this case is the justice an early termination
of the contract by the Claimant, based on the alleged non-payment of certain financial
obligations by the Respondent as per the contract, in accordance with art. 14bis of the
Regulations.
28. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
29. In doing so, the Chamber underlined that the Respondent failed to present its reply to the
claim of the Claimant, and therefore its decision would be made on the basis of the
documentation on file, that is, the argumentation and evidence filed by the Claimant, in
line with article 14 par. 1 of the Procedural Rules.
30. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the Player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
31. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to September, October and November 2023 salaries. Furthermore, the
Chamber noted that the Claimant has provided written evidence of having put the
Respondent in default on 4 December 2023, i.e., at least 15 days before unilaterally
terminating the contract on 20 December 2023.
32. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties. Nonetheless, no evidence was provided.
33. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
34. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
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REF. FPSD-14043
35. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, are equivalent to 4 salaries
(September, October, November and December 2023) under the contract, amounting to
USD 83,332.
36. Moreover, the Chamber observed that the Claimant requested the reimbursement of the
housing paid, the flight tickets and the medical expenses.
37. As the housing, and in accordance with clause 5.5 of the contract and the evidence
provided by the Player which mentioned that he paid on 28 September 2023 SAR
214,615.42 as housing and SAR 15,000 as “security deposit payment”; the Chamber the
Chamber decided to award SAR 214,615.42. However, as “security deposit payment” and
considering that this was not part of the rent, the Chamber decided not to award that
amount.
38. As to the flight tickets, and in accordance with clause 5.5 of the contract and the evidence
provided by the Player which mentioned that he paid USD 14,300 on 4 December 2023 and
USD 8,270 on 20 December 2023; the Chamber decided to award the aforementioned
amounts.
39. As the reimbursement, and in accordance with clause 6 and the evidence provided by the
Player which mentioned that the Player paid SAR 15,180 and SAR 20,700, the Chamber
decided to award the aforementioned amounts.
40. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e., USD
83,332 as outstanding salaries, SAR 214,615.42 as housing allowance, USD 22,570 as flight
tickets and SAR 35,880 as medical expenses41. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. as follows:
-
On USD 105,902 as from 13 March 2024 until the date of effective payment;
-
On SAR 250,495.42 as from 13 March 2024 until the date of effective payment.
42. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Player by the Club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
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REF. FPSD-14043
particular, the remuneration and other benefits due to the Player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
43. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that such compensation (clause 12 of the contract) referred to the Regulations.
44. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Club to the Player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
45. Bearing in mind the foregoing as well as the claim of the Player, the Chamber proceeded
with the calculation of the monies payable to the Player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 1,016,660 (i.e. the 20*USD20,833 plus USD 600,000)
serves as the basis for the determination of the amount of compensation for breach of
contract.
46. In continuation, the Chamber verified as to whether the Player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income.
47. In this respect, the Chamber noted that the Player remained unemployed since the
unilateral termination of the contract.
48. The Chamber then referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in
case the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
49. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 1,016,660, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
50. Then, taking into consideration the Player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Player interest on said
compensation at the rate of 5% p.a. as of 13 March 2024 until the date of effective payment.
pg. 12
REF. FPSD-14043
51. Finally, as to the Player’s claim for moral damages, the Chamber was mindful of the Player’s
situation. However, the Chamber , in line with the long-standing jurisprudence of the
Football Tribunal, decided to reject the mentioned request due to the absence of
quantification of the damages.
iii. Compliance with monetary decisions
52. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 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.
53. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
54. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
55. 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.
56. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
57. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
pg. 13
REF. FPSD-14043
58. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
59. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 14
REF. FPSD-14043
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nicolas Milesi Van Lommel, is partially accepted.
2.
The Respondent, Ohod, must pay to the Claimant the following amounts:
- USD 105,902 as outstanding remuneration plus 5% interest p.a. as from 13 March 2024
until the date of effective payment;
- SAR 250,495.42 as outstanding remuneration plus 5% interest p.a. as from 13 March
2024 until the date of effective payment;
- USD 1,016,660 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 13 March 2024 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 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.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 15
REF. FPSD-14043
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
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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
pg. 16