F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 16 December 2020
Decision of the
Dispute Resolution Chamber
passed on 16 December 2020
regarding an employment-related dispute concerning the player Aleksander Prijovic
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Aleksander Prijovic, Serbia
Represented by Bichara e Motta Adv.
RESPONDENT:
Ittihad FC, Saudi Arabia
Represented by Bär & Karrer
I. Facts
1. On 10 January 2019, the Parties entered into an employment contract (hereinafter: the “contract”), valid as from the date of signature until 30 June 2023
2. According to article 3 of the Employment Contract, the Parties agreed upon the following economic conditions:
“The First Party shall comply with the following:
1. Salary:
For the period 07/01/2019 to 30/06/2019:
o EUR 2,079,500, payable as follows: EUR 614,000 by no later than 15/01/2019; the remaining amount is payable in 6 equal monthly salaries
of EUR 244,250 by the end of each month (January to June).
For the season 2019/2020:
o EUR 4,159,000, payable as follows: EUR 805,000 by no later than 15/07/2019; the remaining amount is payable in 12 equal monthly salaries of EUR 279,500 by the end of each month (July to June).
For the season 2020/2021:
o EUR 4,159,000, payable as follows: EUR 805,000 by no later than 15/07/2020; the remaining amount is payable in 12 equal monthly salaries of EUR 279,500 by the end of each month (July to June).
2- Bonus Payments:
(...)
Goals and Assists Bonus:
(..)
o Bonus per goal scored in the Saudi Professional League (season 2018/2019):
o As from 6 goals scored (up to 7): EUR 62,500;
(...)
o Bonus per goal scored in the Kings Cup or the AFC Champions League:
o Bonus per goal: EUR 5,000.
o Bonus per assist:
o Bonus per assist in the Saudi Professional League Championship: EUR 3,000 per assist;
o Bonus per assist in the Kings Cup or the AFC Champions League: EUR 1,500 per assist.”
3. On 2 August 2019, the player sent a default notice to the club.
4. On 14 March 2020, Ministry of Sports has resolved that all sport activities in the Kingdom of Saudi Arabia to be suspended until further notice
5. On 10 April 2020, the player sent a letter to the club
6. On 13 April 2020, the club released a “Circular” to all its staff informing, inter alia, of the following:
“1) The suspension of sports activities:
(…)
3) Financial Impact: The COVID-19 has affected all clubs financially including Al ittihad SFC. The suspension of sport activities as described earlier adversely impacted the club resulting in losses of revenue streams such as the tickets sales, payments from sponsors, TV rights and many others.
7. On 20 April 2020, the club replied to the player, insisting that “the COVID-19 has affected all clubs financially including Al ittihad SFC. .”
8. On 29 April 2020, the legal representative of the club sent a letter to the player, indicating the following:
“The policy that will have to be applied during the COVID-19 pandemic is the following:
For all employees, a basic amount of SAR 20'000.-/per month remains guaranteed. The part of the contractually agreed monthly salary exceeding SAR 20,000.-will be reduced by 50%.
Period of the policy: 15 March 2020 until the resumption of the sportive activities, club training and the disappearance of the COVID-19 pandemic.
9. Since [the Claimant] belongs to the group of high-income earners of the professional players at Ittihad FC, he is subject to the above-mentioned policy.
10. On 12 June 2020, the legal representative of the club sent the following correspondence to the player:
“At the outset, please note that our client deeply regrets that there are on-going delays in the payment of salaries to all its appreciated players. My client is once again very thankful for your patience and support you are showing in these difficult times
(…)
Nevertheless, we wish to assure you that Ittihad FC continues to make its best efforts to pay all outstanding salaries.”
11. On 16 July 2020, the player sent a default notice to the club, requesting the payment of the outstanding amount of EUR 1,950,299, within 10 days.
12. On 31 July 2020, the player lodged a claim against the club for outstanding remuneration, and requested the payment of the total amount of EUR 1,950,859, detailed as follows:
Payments
Cumulative
Date
Due
Received
Nature
Due
Received
Debt
15/01/19
614.000
Lump Sum 1st Season
614.000
0
614.000
22/01/19
613.950
Lump Sum 1st Season
614.000
613.950
50
30/01/19
244.250
Salary January 2019
858.250
613.950
244.300
11/02/19
244.200
Salary January 2019
858.250
858.150
100
28/02/19
244.250
Salary February 2019
1.102.500
858.150
244.350
11/03/19
244.200
Salary February 2019
1.102.500
1.102.350
150
31/03/19
244.250
Salary March 2019
1.346.750
1.102.350
244.400
04/04/19
224.200
Salary March 2019 *
1.346.750
1.326.550
20.200
15/04/19
3.000
Bonus assist SPL
1.349.750
1.326.550
23.200
30/04/19
244.250
Salary April 2019
1.594.000
1.326.550
267.450
01/05/19
10.000
Bonus two goal King’s Cup
1.604.000
1.326.550
277.450
01/05/19
1.500
Bonus assist King’s Cup
1.605.500
1.326.550
278.950
15/05/19
264.210
Salary April 2019 + regularization payment *
1.605.500
1.590.760
14.740
27/05/19
5.000
Bonus goal King’s Cup
1.610.500
1.590.760
19.740
31/05/19
244.250
Salary May 2019
1.854.750
1.590.760
263.990
01/06/19
5.000
Bonus goal King’s Cup
1.859.750
1.590.760
268.990
11/06/19
62.500
Bonus 6 goals SPL
1.922.250
1.590.760
331.490
30/06/19
244.250
Salary June 2019
2.166.500
1.590.760
575.740
08/07/19
244.210
Salary May 2019
2.166.500
1.834.970
331.530
15/07/19
805.000
Lump Sum 2nd Season
2.971.500
1.834.970
1.136.530
31/07/19
279.500
Salary July 2019
3.251.000
1.834.970
1.416.030
08/08/19
244.250
Salary June 2019
3.251.000
2.079.220
1.171.780
26/08/19
279.460
Salary July 2019
3.251.000
2.358.680
892.320
31/08/19
279.500
Salary August 2019
3.530.500
2.358.680
1.171.820
09/09/19
805.000
Lump Sum 2nd Season
3.530.500
3.163.680
366.820
30/09/19
279.500
Salary September 2019
3.810.000
3.163.680
646.320
30/09/19
279.460
Salary August 2019
3.810.000
3.443.140
366.860
13/10/19
3.000
Bonus assist SPL
3.813.000
3.443.140
369.860
21/10/19
3.000
Bonus assist SPL
3.816.000
3.443.140
372.860
31/10/19
279.500
Salary October 2019
4.095.500
3.443.140
652.360
27/11/19
558.960
Salary September & October 2019 **
4.095.500
4.002.100
93.400
30/11/19
279.500
Salary November 2019
4.375.000
4.002.100
372.900
08/12/19
1.500
Bonus assist Kings Cup
4.376.500
4.002.100
374.400
31/12/19
279.500
Salary December 2019
4.656.000
4.002.100
653.900
31/12/19
279.460
Salary November 2019
4.656.000
4.281.560
374.440
06/01/20
5.000
Bonus goal Kings Cup
4.661.000
4.281.560
379.440
31/01/20
279.500
Salary January 2020 ***
4.940.500
4.281.560
658.940
06/02/20
279.460
Salary December 2019
4.940.500
4.561.020
379.480
28/02/20
279.500
Salary February 2020 ****
5.220.000
4.561.020
658.980
31/03/20
279.500
Salary March 2020 ****
5.499.500
4.561.020
938.480
30/04/20
279.500
Salary April 2020
5.779.000
4.561.020
1.217.980
31/05/20
279.500
Salary May 2020
6.058.500
4.561.020
1.497.480
22/06/20
489.085
Salary February & March (Partial) 2020
****
6.058.500
5.050.105
1.008.395
30/06/20
279.500
Salary June 2020
6.338.000
5.050.105
1.287.895
30/06/20
142.036
Salary April (Partial) 2020
6.338.000
5.192.141
1.145.859
15/07/20
805.000
Lump Sum 3rd Season
7.143.000
5.192.141
1.950.859
31/07/20
TODAY
7.143.000
5.192.141
1.950.859
In yellow: entirely outstanding payments.
In orange: partially outstanding payments
13. According to the Claimant, the club applied certain unilateral reductions in a manner that is not in line with the directions given by FIFA in the FIFA Covid-19 Football Regulatory Issues and is therefore inapplicable.
14. In the opinion of the claimant, any reduction related to the COVID-19 pandemic shall be as are proportionate, reasonable and jointly reached, and that that the unilateral reduction of salaries is shall be an “ultima ratio” measure.
15. The Claimant further considered that the Club shall prove in detail which economic losses it suffered (in comparison to the average of previous seasons), with references to specific lower head of incomes resulting from the Club’s balance sheet. In other words, the Club shall prove any variation in its financial situation rather than simply invoke it.
16. In its reply, the Respondent acknowledged its debt for “some amounts” (I.e. before March 2020), and stated that it “is currently doing its utmost to meet these financial obligations and it has no intention of ignoring its contractual commitments.”
17. However, the Respondent considered that there is no legal basis for most of the player’s requests.
18. In this respect, the Respondent referred to the COVID-19 crisis, and explained that it performed certain reductions within this context.
19. According to the Respondent, “this salary reduction was in line with the relevant prerequisites based on the Guidelines of FIFA, the Saudi Arabia Football Federation (SAFF), the Saudi Professional League (SPL), local national law and Swiss law.”
20. The Respondent explained that it applied the following policy:
- For all employees, a basic amount of SAR 20'000.-/per month remained guaranteed.
- The monthly salary exceeding SAR 20,000.- was exceptionally reduced by 50%.
- This policy would apply as from 15 March 2020 until the resumption of the sporting activities in the Kingdom of Saudi Arabia and the club's training activities, and the disappearance of the COVID-19 pandemic.
21. The Claimant was invited to comment of the Respondent’s position and confirmed its initial arguments.
22. In view of the above, the Claimant confirmed its claim for the total amount of EUR 1,950,859, as initially expressed, plus related 5% interest p.a.
23. As to the applicable law, the Claimant considered that Saudi Arabian Labor Law is inapplicable to the present matter, insofar “art. 7 para. 6 of the Saudi Arabian Labor Law (Royal Decree No. M/51 dated 23/8/1426; Council of Ministers Resolution No. 219 dated 22/8/1426), established that “players and coaches of sports clubs and federations” are exempted from the provisions of said law” , as well as considering that the parties agreed that the matter shall be governed by the FIFA Regulations and, in a subsidiary manner, by Swiss law.
24. Lastly, during the proceedings, the Claimant informed FIFA that, after having lodged the Claim and in relation to the amounts claimed therein, he received the following partial payments:
• On 15.09.20: EUR 142,036.00 (allegedly corresponding to the monthly salary of May 2020);
• On 25.09.20: EUR 142,036.00 (allegedly corresponding to the monthly salary of June 2020).
II. Considerations of the Dispute Resolution Chamber
1. 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. 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 Serbian player and a Saudi Arabian club.
3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of 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 31 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 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 10 January 2019, the Parties entered into a contract, valid as from the date of signature until 30 June 2023, according to which the player was entitled to the remuneration quoted in point I. 2 above.
6. Thereafter, the Chamber noted that the Claimant lodged a claim before FIFA for outstanding remuneration, initially noting that a total amount of EUR 1,950,859 remained outstanding (cf. point I. 12 above for detailed breakdown).
7. Conversely, the Chamber noted that, in its reply, the Respondent acknowledged its debt for “some amounts” (i.e. before March 2020), whereas it considered that there is no legal basis for most of the player’s requests, insofar it performed certain deductions in view of the economic effects related to the COVID-19 pandemic.
8. In view of the above, the Chamber wished to underline, at this stage, that it could only accept the player’s requests for the outstanding payments arisen before March 2020, since said part of the claim remained fundamentally uncontested.
9. The foregoing being established, the Chamber went on to examine the Respondent’s arguments in relation to the COVID-19 pandemic and its effects in the club’s income.
10. Having said that, 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.
11. 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.
12. In addition, the Chamber observed that, following said document, where (a) clubs and employees cannot reach an agreement, and (b) national law does 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.
13. With this idea in mind, the Chamber first wished to establish which is the applicable law for the contract that is at the basis of the dispute at stake.
14. 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 SAFF, FIFA, the Confederation and the Saudi Professional League. If some of the provisions of these acts are not in agreement with FIFA rules, all applicable FIFA rules will prevail.”
15. In view of the above, the Chamber noted that it is beyond any doubt that the parties agreed that the FIFA Regulations, namely the Regulations on the Status and Transfer of Player, are the primary source of law that is applicable to the contract at stake.
16. After establishing the applicable law to the relevant contract, the Chamber underlined once again that, following the COVID-19 Guidelines, unilateral decisions to vary agreements will only be recognised where they were made in good faith and that, when assessing said decision, the DRC may consider, without limitation, the following elements:
a. whether the club had attempted to reach a mutual agreement with its employee(s);
b. the economic situation of the club;
c. the proportionality of any contract amendment;
d. the net income of the employee after contract amendment;
e. whether the decision applied to the entire squad or only specific employees.
17. After duly taking note of all of the aforementioned criteria, the Chamber focused its attention to 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.
18. With this idea 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.
19. Within this context, and after duly analyzing the evidence gathered during the course of the investigation, the members of the Chamber considered that the Respondent failed to prove that it attempted to conduct a negotiation with the player in good faith. In addition, the Chamber observed that the club already had outstanding remuneration towards the player that was already long overdue before the outbreak of the COVID-19 pandemic.
20. As a result, a majority of the Chamber was of the opinion that it could not recognize the salary deductions performed by the Respondent and that, consequently, the player is entitled to his remuneration as contractually agreed.
21. In this respect, the Chamber noted that the player sufficiently justified the alleged due amounts in accordance with art. 12 par. 3, in accordance with the table quoted in point I. 12 above and that, in principle, he would be entitled to the claimed total amount of EUR 1,950,859, as it is grounded in the remuneration as provided by the contract.
22. However, the Chamber observed that, during the course of the investigation, that the Claimant acknowledged having received the following partial payments:
• On 15.09.20: EUR 142,036.00 (allegedly corresponding to the monthly salary of May 2020);
• On 25.09.20: EUR 142,036.00 (allegedly corresponding to the monthly salary of June 2020).
23. In view of the above, the Chamber deducted the aforementioned partial payments, leading to a total due amount of EUR 1,666,787 (i.e. 1,950,859-142,036-142,036).
24. As a result, the Chamber established that, in accordance with the principle of pacta sunt servanda, that the Respondent shall pay to the Claimant, the total outstanding amount of EUR 1,666,787.
25. 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. over said amount as from the date of the claim.
26. 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.
27. 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.
28. 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.
29. 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, Aleksander Prijovic, is accepted.
2. The Respondent, Ittihad FC, has to pay to the Claimant, the amount of EUR 1,666,787 as outstanding remuneration plus 5% interest p.a. as from 31 July 2020 until the date of effective payment.
3. 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.
4. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).
5. 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
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:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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