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 2 July 2020
Decision of the
Dispute Resolution Chamber
passed via videoconference, on 2 July 2020,
regarding a contractual dispute concerning the player Odai Yousef Ismail AL SAIFY
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Michelle Colucci (Italy), member
Todd Durbin (USA), member
CLAIMANT:
ODAI YOUSEF ISMAIL AL SAIFY, Jordan
Represented by Mr. Pedro Macieirinha
RESPONDENT:
AL SALMIYA CLUB, Kuwait
I. FACTS OF THE CASE
Contractual basis
1. On 16 June 2017, the Jordanian player, Odai Yousef Ismail Al Saify (hereinafter: the Claimant or
the player) and the Kuwaiti club, Al Salmiya Club (hereinafter: the Respondent) signed a first
employment contract (hereinafter: the first contract) valid for two seasons, namely 2017/2018
and 2018/2019.
2. On 7 February 2019, the Claimant lodged a claim in front of FIFA against the Respondent,
alleging that the Respondent had an outstanding debt towards him.
3. On 11 May 2019, the Claimant withdrew the aforementioned claim in front of FIFA.
4. On 11 May 2019, the parties signed a new contract for seasons 2019/2020 and 2020/2021
(hereinafter: the second contract).
5. According to the second contract, the player, inter alia, was entitled to receive the following
remuneration:
a. For season 2019/2020:
i. USD 100,000 on 1 August 2019;
ii. USD 100,000 on 1 November 2019;
iii. USD 100,000 on 1 February 2020;
iv. 10 monthly salaries of USD 10,000 from August 2019 to May 2020;
v. KWD 900 per month as “accommodation allowance”;
vi. KWD 250 per month for “car rent”;
b. For season 2020/2021:
i. USD 100,000 on 1 August 2020;
ii. USD 100,000 on 1 November 2020;
iii. USD 100,000 on 1 February 2021;
iv. 10 monthly salaries of USD 10,000 from August 2020 to May 2021;
v. KWD 900 per month as “accommodation allowance”;
vi. KWD 250 per month for “car rent”.
6. According to the information available in the Transfer Matching System (hereinafter: TMS), the
respective seasons in Kuwait ran as follows 2019/2020: 1 August 2019 until 31 May 2020;
2020/2021: 1 August 2020 until 1 June 2021.
7. On 26 May 2019, the parties signed a “Settlement Agreement”, by means of which the
Respondent recognized a debt of KWD 175,510 towards the Claimant that had accrued from
the first employment contract. The parties agreed on the payment of the debt in nine instalments
as follows:
“First payment – KWD 15,510 (…) which shall be paid at the end of July 2019, and the remaining
sum of KWD 160,000 (…) shall be paid in eight payments (a payment shall be made by the end
of each month as of August 2019 till the end of March 2020)”
8. According to art. 5 of the settlement agreement, “this contract shall be governed by all Kuwaiti
laws and Kuwaiti courts shall have jurisdiction over any dispute arising from or in connection with
this agreement”.
9. The Claimant informed the FIFA administration that he signed a contract with the Kuwaiti club
Qadsia SC valid as from 9 December 2019 until 31 May 2020.
10. According to this agreement, the Claimant was entitled to receive a USD 15,000 advance
payment upon signature as well as a monthly salary of USD 10,000 payable from January to May
2020, bringing the total fixed remuneration on the new contract to USD 65,000.
Chain of events
11. By correspondence of 7 October 2019 and 16 October 2019, the Claimant requested from the
Respondent:
- USD 450,000 “regarding the fee due since 01/08/2018 and the salaries between July 2018
and June 2019” and KWD 10,858 “for car and house, referring to the first contract for the
sports season of 2018/2019”;
- USD 100,000 “due since 01/08/2019, and the payment of USD 20,000 related to the
salaries of August 2019 and September 2019, plus KWD 2,3000 for the house and car
related to the months of August and September 2019, all referring to the second contract
for the sports season 2019/2020.”
12. On 18 October 2019, the Claimant sent a reminder referring to the correspondence above and
setting a deadline until 22 October 2019 for the Respondent to comply with its obligation.
13. On 11 November 2019, the Claimant sent another correspondence to the Respondent,
requesting the payment of the claimed amounts within the “next 25 hours, under penalty of
termination of the contract by the player with just cause and compensation”, to no avail.
14. On 13 November 2019, the Claimant sent a termination notice to the Respondent.
Requests of the parties
15. On 29 November 2019, the Claimant lodged a claim in front of FIFA, requesting the following:
- “declare that the contract signed between the parties was terminated by the player with just
cause”;
- USD 476,844.97 for season 2018/2019;
- USD 200,000 as the lump sum fee that fell due on 1 August and 1 November 2019;
- USD 30,000 as the salaries of August, September and October 2019;
- KWD3,450 “for the house and car” allowances of August, September and October 2019;
- “More interests since all the due until full payment and free of taxes and other administrative
incomes that are responsibility of the Respondent club”;
- Compensation for breach of contract in the amount of USD 470,000 and KWD 8,050;
- “More interests since all the due until full payment and free of taxes and other administrative
incomes that are responsibility of the Respondent club”;
- “Disciplinary measures”.
16. The Respondent declared that the debt that resulted from the first employment contract had
been novated by the settlement agreement, and that within said settlement agreement the
parties had agreed to the exclusive jurisdiction of the Kuwaiti courts. Therefore, the Respondent
declared that this part of the claim should be rejected.
17. Then, the Respondent declared that the Claimant should only be awarded USD 250,000
corresponding to overdue salaries from August to November 2019 as well as two instalments of
USD 100,000 due in August and November 2019, and declared that as the player signed a new
contract no further amount should be awarded or alternatively deducted from any further
amount awarded. The Respondent requested that any amount awarded should be spread in
instalments.
Position of the parties
18. In its claim, Claimant declared that he terminated the contract with just cause as the Respondent
was not paying his salaries. Consequently, the Claimant requested the balance of the underpaid
salaries and compensation for the breach of contract (cf. request below). The Claimant
acknowledges that the Respondent has, until the filing of the claim, paid “some of the requested
payments”. The Claimant did not offer any further specification.
19. In reply, the Respondent answered that he was put in default by the Claimant but that he had
neglected some amounts that had been paid through the settlement agreement in the process.
In fact, the Respondent explained that it had made the following payments to the Claimant:
a. KWD 4,000 on 11 June 2019;
b. KWD 10,000 on 2 July 2019;
c. KWD 6,000 on 16 July 2019;
d. KWD 1,000 on 4 August 2019;
e. KWD 2,000 on 28 August 2019;
f. KWD 1,700 on 28 August 2019;
g. KWD 1,000 on 2 September 2019;
h. KWD 1,000 on 22 October 2019
20. The Respondent stated that the parties held discussions and decided to continue the working
relationship, and the Claimant allegedly participated in a league match for the Respondent on
31 October 2019, and participated to its last training session on 6 November 2019, thus
evidencing his tacit will to continue the employment relationship.
21. The Respondent explained that on 7 November 2019, the Claimant was absent from a league
match despite having been selected in the match day squad, and the Respondent declared that
the Claimant cut all contacts with the Respondent before sending a termination letter on 12
November 2019. The Respondent did not provide any evidence in support.
22. The Respondent expressed its surprise as to the fact that the player has requested the full value
of the first employment contract and the second employment contract, omitting the settlement
agreement that the parties had entered in order to settle the debts of the first employment
contract. In particular, the Respondent referred to art. 5 of the settlement agreement and
indicated that the parties agreed to the exclusive jurisdiction of the Kuwaiti courts and therefore
that FIFA was not competent to hear any dispute arising from said settlement agreement.
23. Finally, the Respondent indicated that the Claimant had signed a new contract with another club
and that its earnings should be deducted from any amount that might be awarded by the FIFA
DRC.
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. In this respect, it took note
that the present matter was submitted to FIFA on 29 November 2019 and submitted for decision
on 2 July 2020. Taking into account the wording of art. 21 of the 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed 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 (edition June 2020), the Dispute Resolution
Chamber is in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Jordanian player and a
Kuwaiti club.
3. However, the DRC observed that the Respondent had contested the competence of FIFA’s
deciding bodies regarding the settlement agreement on the basis of art. 5 of the agreement of
relevance, according to which “this contract shall be governed by all Kuwaiti laws and Kuwaiti
courts shall have jurisdiction over any dispute arising from or in connection with this agreement”.
4. In particular, the DRC noted that the Claimant only based his claim in relation to the alleged debt
of the first employment contract on the contract itself, and omitted to mention that since the
accruing of said debt, the parties had entered in a settlement agreement in this regard.
5. As a preliminary remark, the Chamber underlined that the first requirement that needs to be met
in order to establish that another organ than the DRC is competent to settle an employmentrelated
dispute between a club and a player of an international dimension, is that the jurisdiction
of the relevant national arbitration tribunal or national court derives from a clear reference in the
agreement. What is more, the DRC recalled that, in consistency with the jurisprudence of the
Chamber in this regard, it would declare himself competent in instances where the parties have
not made a clear and unambiguous reference to the exclusive jurisdiction of their choice.
6. Although emphasising that this principle is imbedded in the jurisprudence of the Dispute
Resolution Chamber and the Player’s Status Committee, the DRC was keen to point out that each
dispute had to be assessed on its own merits.
7. Having examined the relevant provision, the Chamber underlined that the settlement agreement
had been drafted by the parties in order to settle a dispute that had arisen during the execution
of the first contract and that had been lodged in front of the FIFA Dispute Resolution Chamber.
What is more, the DRC noted that the Claimant had withdrew his claim in front of FIFA (cf. I.2
above) as a result of the settlement agreement. As such, the Chamber concluded that the
settlement agreement had novated the debt that had arisen from the first employment contract.
8. Then, the Chamber observed that the parties had, through art. 5 of the settlement agreement,
jointly agreed to confer jurisdiction to Kuwaiti court and that the Claimant withdrew his claim in
front of FIFA regarding the debt that had accrued in relation to the first employment contract,
the DRC determined that it was clear that the Claimant and the Respondent had chosen to give
jurisdiction to the relevant Kuwaiti courts and that they explicitly had chosen to exclude the
jurisdiction of FIFA.
9. In view of all the above, the Chamber established that it was not competent to hear the dispute
that had arisen between the parties in relation to the first employment contract, and declared
this part of the claim of the Claimant inadmissible.
10. Nevertheless, the DRC observed that the Respondent did not dispute the competence of FIFA in
relation to the execution of the second contract, and consequently declared itself competent, on
the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the
present matter as to the substance.
11. Subsequently, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that
the claim was lodged on 29 November 2019, the October 2019 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
12. The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. 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. In particular, the Chamber recalled that, in accordance
with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated or
contained in the TMS.
13. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the
present matter, the parties’ arguments as well the documentation on file, bearing in mind art.
12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the
basis of an alleged fact shall carry the burden of proof.
14. First of all, the members of the Chamber acknowledged that, on 11 May 2019, the player and
the club had concluded an employment contract, i.e. the second contract, valid as from the date
of signature until 1 June 2021, pursuant to which the club undertook to pay to the player the
remuneration, as established in point I.5 above.
15. Furthermore, the members of the DRC took note of the fact that, between 7 October and 11
November 2019, the player had put the club in default of payment several times, requesting,
inter alia, of:
- USD 450,000 “regarding the fee due since 01/08/2018 and the salaries between July 2018
and June 2019” and KWD 10,858 “for car and house, referring to the first contract for the
sports season of 2018/2019”;
- USD 100,000 “due since 01/08/2019, and the payment of USD 20,000 related to the
salaries of August 2019 and September 2019, plus KWD 2,3000 for the house and car
related to the months of August and September 2019, all referring to the second contract
for the sports season 2019/2020.”
16. Moreover, the DRC took note that, according to the player, he had just cause to unilaterally
terminate the employment contract on 13 November 2019, since no payment had been made
by the club in this respect.
17. Subsequently, the members of the DRC took note that the Respondent, for its part, did not
contest that it had an outstanding debt towards the Claimant, but insisted that it had made a
certain number of payments (cf. I.19 above) to the Claimant in line with the settlement
agreement which he had omitted to mention in his claim.
18. What is more, the Chamber observed that the Respondent had indicated that the Claimant had
been absent from a league match on 7 November 2019.
19. In light of the foregoing, the DRC considered that the underlying issue in this dispute, considering
the parties’ position, was to determine as to whether the player had just cause to terminate the
employment contract and to determine the consequences thereof.
20. In this context, the Chamber deemed it appropriate to clarify that, in accordance with art. 12 par.
3 of the Procedural Rules, in the present case, the Respondent bore the burden of proving either
the payment of the Claimant’s salaries or that it had a valid reason for not having done so.
21. In this respect, the Chamber noted that based on the evidence on file, it was uncontested that
the Respondent failed to pay any of the amounts foreseen in the second contract.
22. What is more, the DRC remarked that the Respondent did not provide any explanation as to the
absence of payments, besides making a reference to an alleged absence of the Claimant on 7
November 2019 without providing any evidence in support.
23. In continuation, the Chamber noted that at the time of termination by the Claimant, the
Respondent had an outstanding debt of USD 230,000 (corresponding to USD 100,000 as the
signing on fee of August 2019, USD 100,000 as the signing on fee of November 2019, and 3
monthly salaries of USD 10,000 each as from August 2019 until October 2019) and of KWD
3,450 (KWD 900 monthly rental allowance and USD 250 monthly car allowance as from August
2019 until October 2019) towards the player.
24. Consequently, on account of the above, and considering the absence of reply and/or reaction
from the Respondent to the Claimant’s default notices, the player had just cause to unilaterally
terminate the employment contract.
25. As a result, the Chamber decided that the Respondent is to be held liable for the early termination
of the employment contract with just cause by the player.
26. Having established that the Respondent is to be held liable for the early termination of the
employment contract, the DRC focused his attention on the consequences of such termination.
Taking into consideration art. 17 par. 1 of the Regulations, the DRC established that the player
is entitled to receive from the Respondent compensation for breach of contract, in addition to
any outstanding payments on the basis of the relevant employment contract.
27. Along those lines, the DRC firstly referred to the player’s request regarding the outstanding
remuneration at the time of the unilateral termination of the employment contract. In this
respect, the DRC concurred that the Respondent must fulfil its obligations as per the employment
contract in accordance with the general legal principle of “pacta sunt servanda”.
28. Consequently, and bearing in mind that the player terminated his employment contract on 13
November 2019, the Chamber decided that the Respondent is liable to pay to the player
outstanding remuneration in the amount of USD 230,000 and KWD 3,450, pertaining to his
monthly salaries and car and rental allowances of August, September and October 2019 as well
as the two lump sum fees of USD 100,000 due on 1 August 2019 and 1 November 2019.
29. In addition, taking into consideration the specific request of the player on the point, the Chamber
decided to award the latter interest at the rate of 5% p.a. as follows:
- 5% interest p.a. as from 2 August 2019 until the date of effective payment on the amount
of USD 100,000;
- 5% interest p.a. as from 1 September 2019 until the date of effective payment on the
amount of USD 10,000 and KWD 1,150;
- 5% interest p.a. as from 1 October 2019 until the date of effective payment on the amount
of USD 10,000 and KWD 1,150;
- 5% interest p.a. as from 1 November 2019 until the date of effective payment on the
amount of USD 10,000 and KWD 1,150;
- 5% interest p.a. as from 2 November 2019 until the date of effective payment on the
amount of USD 100,000.
30. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the player is entitled to receive compensation for breach of contract from the club.
31. In continuation, the DRC focused his attention on the calculation of the amount of compensation
for breach of contract due to the Claimant by the Respondent in the case at stake. In doing so,
the DRC 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 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.
32. In application of the relevant provision, the Chamber held that it first of all had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a compensation payable by the contractual parties in the event of
breach of contract. In this regard, the Chamber observed that the employment contract does not
contain any such clause.
33. 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 parameters set out in
art. 17 par. 1 of the Regulations. Bearing in mind the foregoing, the Chamber proceeded with
the calculation of the monies payable to the player under the terms of the employment contract
as from its termination and concluded that the player would have been entitled to receive USD
570,000 and KWD 19,550 as remuneration had the employment contract been executed until
its regular expiry date, i.e. 1 June 2021. Consequently, the Chamber concluded that the amount
of USD 570,000 and KWD 19,550 serves as the basis for the final determination of the amount
of compensation for breach of contract in the case at hand.
34. In continuation, the Chamber assessed 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
able to reduce his loss of income. In this respect, the DRC deemed it necessary to refer to the
first sentence of art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player
signed a new contract by the time of the decision, the value of the new contract for the period corresponding to the time remaining on the prematurely terminated contract shall be deducted
from the residual value of the contract that was terminated early (the ”Mitigated
Compensation”).
35. In respect of the above, the Chamber recalled that, on 24 January 2020, the Claimant signed an
employment contract with the Kuwaiti club Qadsia SC valid as from 9 December 2019 until 31
May 2020, and that according to this agreement, the Claimant was entitled to receive a total
fixed remuneration on the new contract to USD 65,000. On account of the above, such amount
shall be deducted, leading to a mitigated compensation in the amount of USD 505,000 and KWD
19,550.
36. Subsequently, the Chamber turned its attention to the second sentence of art. 17 par. 1 lit. ii) of
the Regulations, according to which, in addition to the mitigated compensation, the player shall
be entitled to an additional compensation of three monthly salaries, subject to the early
termination of the contract being due to overdue payables, whereby the overall compensation
may never exceed the rest value of the prematurely terminated contract.
37. With the above in mind, the Chamber decided to award the Claimant additional compensation
in the amount of USD 30,000, in accordance with the above-mentioned provision.
38. Consequently, on account of all the above-mentioned considerations, the Chamber decided that
the Respondent must pay the amount of USD 535,000 and KWD 19,550 as compensation for
breach of contract to the player.
39. In addition, taking into consideration the specific request of the player on the point, the Chamber
decided to award the latter interest at the rate of 5% p.a. as from the date of claim, i.e. 29
November 2019.
40. The Chamber concluded its deliberations by rejecting any further claim of the player.
41. Furthermore, taking into account the consideration under number II./3. above, the 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.
42. In this regard, the 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.
43. Therefore, bearing in mind the above, the DRC 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.
44. Finally, the 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, Odai Yousef Ismail AL SAIFY, is accepted insofar it is admissible.
2. The Respondent, Al Salmiya Club, has to pay to the Claimant, the following amount:
- USD 100,000 as outstanding remuneration plus 5% interest p.a. as from 2 August 2019 until
the date of effective payment.
- USD 10,000 and KWD 1,150 as outstanding remuneration plus 5% interest p.a. as from 1
September 2019 until the date of effective payment.
- USD 10,000 and KWD 1,150 as outstanding remuneration plus 5% interest p.a. as from 1
October 2019 until the date of effective payment.
- USD 10,000 and KWD 1,150 as outstanding remuneration plus 5% interest p.a. as from 1
November 2019 until the date of effective payment.
- USD 100,000 as outstanding remuneration plus 5% interest p.a. as from 2 November 2019
until the date of effective payment.
- USD 535,000 and KWD 19,550 as compensation for breach of contract without just cause
plus 5% interest p.a. as from 29 November 2019 until the date of effective payment.
3. Any further claims of the Claimant are rejected.
4. 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.
5. 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).
6. 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).
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