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 25 March 2021
Decision of the
Dispute Resolution Chamber
passed on 25 March 2021
regarding an employment-related dispute concerning the player Antonio Filipe Norinho de Carvalho
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Daan de Jong (Netherlands), member
Alexandra Gómez Bruinewoud (Netherlands & Uruguay), member
CLAIMANT:
Antonio Filipe Norinho de Carvalho, Portugal
RESPONDENT:
Al Jabalain FC, Saudi Arabia
I. Facts
1. On 10 January 2020, the parties concluded an employment contract valid as from the date of signature until 1 June 2020 (i.e. 5 months).
2. According to the contract, the player was entitled to USD 8,000 per month, plus USD 15,000 as “the contract provider”. The contract stipulated that the total value is USD 55,000.
3. The contract further stipulated the following:
"Article IX:
Settlement of Disputes
1- The parties will seek to resolve their differences on the implementation of the contract amicable settlement
2- The Saudi arbitration center shall be used in case of dispute between the club and the player In Implementing the terms of the contract.”
4. On 25 May 2020, the parties signed a document with the following contents:
“Whereas, the two parties entered into a contract for a professional football player on 10/01/2020 and it starts to run from 10/01/2020 until 01/06/2020 (referred to as the contract) and that the clause of the first clause of the circular Issued by the Federation Saudi Football Association No. (2/6387) dated 22/10/1441 AH obliged clubs and players to extend contracts until the end of the sports season 2019/2020, as the two parties agreed to agree this contract to supplement some of the terms of the contract
The first clause: He agreed to amend the second clause of the contract to end on 20/09/2020
The second Item: The second party from the first party receives a monthly salary and capacity of 8000 eight thousand US dollars during the period from the date of 01/06/2020 to the date of 20/09/2020 which is the same monthly salary in the contract
The third Item: Add the rest of what is mentioned in this appendix.”
5. On 27 October 2020, the legal representative of the player sent a default notice indicating the following:
“We remind your club owes to our client four full months of salary. This outstanding amount is equal to SAR 120,000 (Saudi Arabia Riyals) or USD 32,000 (US Dollars).
In addition to that, your club should also pay SAR 7,000 / USD 1,866.67 as game bonuses.
At last, your club made our client train and play when he tested positive for COVID-19, endangering his health as well as the others. In the event we do not read back from you until the end of the week, we are filing a clam at FIFA”
6. The Respondent provided a copy of the Statute of the Saudi Sport Arbitration Center, which contains, inter alia, the following articles:
“Article 2: SSAC
The SSAC is the body which has the supreme and exclusive power to resolve sports disputes and sports-related disputes by arbitration or mediation. It is an independent and impartial body, with a legal personality and financial and administrative independence. It shall be represented by the President of the Board or his authorized representative.
(…)
Article 4: Legal Reference
The SSAC was established in accordance with the Olympic Charter, the Statutes of International Federations (IFs), CAS Rules and Regulations, and Saudi Law of Arbitration.
8.1. The SSAC jurisdiction shall be applicable only when the dispute is reported in less than 21 days by the disputing parties through official channels as defined by the concerned regulation
8.2. In sports disputes, if any of the parties to the dispute is a foreigner, then the awards may be appealed before the International Sports Federations (IFs) or CAS, in case the IFs' Statute stipulate that appeal shall be made before their judicial bodies. In case the contract stipulates that the arbitration shall fall within the SSAC jurisdiction, then the SSAC Award shall be final and non-appealable before any other authority.
(…)
Article 26: Composition of Arbitration Panels
Arbitration Panels shall be composed of three arbitrators or a single arbitrator (upon the request of the litigants) who shall be selected only from the SSAC- approved list of arbitrators.”
7. The Respondent further provided the 2016 edition of the Procedural Rules of the Saudi Sport Arbitration Center, which include, inter alia, the following articles:
“10.1 The Party requesting arbitration (Claimant) shall pay the arbitration fees upon submitting a matter to the SSAC. In case the Claimant requests fast track arbitration, the Claimant shall pay the fees as prescribed. All the fees are non-refundable.”
8. On 23 November 2020, the Claimant lodged a claim before FIFA against the Respondent and requested the following:
i. pay the outstanding salaries in the amount of SAR 140,000, equivalent to USD 37,333, plus 5% p.a. interest as of the due date, until the date of effective payment;
ii. pay the compensation for endangering the life of the Claimant in the amount of six salaries, which represents SAR 180,000.00 and it is equivalent to USD 48,000;
9. According to the Claimant, the club delivered a document written exclusively in Arabic and imposed and pressured him to sign it. The Claimant explained that the Respondent tried to pay half of his salaries April and May 2020, in view of the COVID-19 pandemic.
10. The Claimant further explained that he tested positive for COVID-19 on 30 June 2020, 5 July 2020, and 12 July 2020.
11. In its reply to the claim, the Respondent contested the jurisdiction of FIFA on the basis of art. IX par. 2 of the contract, and considered that the SSAC shall be competent.
12. In the opinion of the Respondent, the Saudi Arbitration Center provides all principal of fair, parity and impartially and it was the choice of the parties when they concluded the contract.
13. As to the salary reduction, the Respondent argued that it is clear that the player was well aware of the content of the document and agreed to reduce his salary without any kind of pressure from the club like the majority of players and club staff.
14. In relation to the language, the Respondent explained that, pursuant to the well-established FIFA DRC jurisprudence “a party signing a document of legal importance without knowledge of its precise content, as a general rule, does so on its own responsibility”
15. Concerning the outstanding salaries, the club explained that the contract was extended until 20 September 2020. Hence, in the opinion of the club, the player was entitled to the following amounts:
Advance payment
15000 USD i.e. 56.250 Saudi Riyal
January 2020 ( 20 days)
5.333 USD i.e. 20.000 Saudi Riyal
February 2020
8.000 USD i.e. 30.000 Saudi Riyal
March 2020
8.000 USD i.e. 30.000 Saudi Riyal
April 2020 ( 50 % as agreed between the parties )
4.000 USD i.e. 15.000 Saudi Riyal
May ( 50 % as agreed between the parties )
4.000 USD i.e. 15.000 Saudi Riyal
June 2020
8.000 USD i.e. 30.000 Saudi Riyal
July 2020
8.000 USD i.e. 30.000 Saudi Riyal
August 2020
8.000 USD i.e. 30.000 Saudi Riyal
September 2020 ( 20 days)
5.333 USD i.e. 20.000 Saudi Riyal
Total
73.666 USD i.e. 276.250 Saudi Riyal
16. In this respect, the club explained that it paid the player as follows:
Date
Amount
Method of payment
23-01-2020
56.250 Saudi Riyal i.e.15000 USD
Cheque 0000004372
03-03-2020
30.000 Saudi Riyal i.e. 8.000 USD
Cheque 0000004529
13-04-2020
30.000 Saudi Riyal i.e. 8.000 USD
Cheque 0000004584
09-07-2020
30.000 Saudi Riyal i.e. 8.000 USD
Cheque 0000004662
17-09-2020
30.000 Saudi Riyal i.e. 8.000 USD
Cheque 0000004859
28-09-2020
30.000 Saudi Riyal i.e. 8.000 USD
Cheque 0000004846
Total
206.250 SAR i.e. 55.000 USD
17. In view of the above, the club acknowledged that it owes to the player the amount of SAR 60,000, equivalent to USD 16,000, and considered that this amount is due is due essentially to the player’s default and negligence.
18. In this respect, the club explained that, on 18 October 2020, it requested the player to provide his bank details.
19. As to the requested compensation, the club considered that the request for said compensation as presented by the Claimant had no legal basis or evidence that demonstrated the damage suffered or its quantity.
20. In his replica, the player rejected the competence of the Saudi Arbitration Centre as a dispute resolution body.
21. The player argued that the Saudi Arabian Arbitration Centre does not provide the basic principles of a fair trial such as parity of arms and impartiality, as well as presenting language and procedural barriers.
22. As to the reduction of salaries the player explained that had no other option than to sign it as he was “being in a foreign country, not speaking the language, and in a vulnerable position.”
23. The player therefore insisted that the Respondent still owes him SAR 140,000, which is equivalent to USD 37,333.
24. Alternatively, the Respondent admitted that, if FIFA considers the Respondent’s arguments as valid, the Respondent should still be ordered to pay SAR 83,750 (SAR 260,000 –SAR 176,250), which is equivalent to USD 22,500.
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 January 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.
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, in principle, competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs.
3. However, the Chamber acknowledged that the Respondent, claimed that the Saudi Sport Arbitration Center (hereinafter: the SSAC) was competent to deal with the present case.
4. In particular, the Chamber took note that the Respondent argued that the SSAC provides all principal of fair, parity and impartially and it was the choice of the parties when they concluded the contract, insofar it was mentioned in art. IX of the contract.
5. In this regard, the Chamber observed that the Claimant argued that the SSAC does not provide the basic principles of a fair trial such as parity of arms and impartiality, as well as presenting language and procedural barriers.
6. As a consequence, the Chamber started by acknowledging that the parties did not dispute that the matter at hand was brought to an alternative dispute resolution process within football.
7. Taking into account the above, the Chamber emphasized that it was necessary to ascertain who is competent to decide on the issue within the football-related dispute resolution system. In other words, the competence of a national deciding body on the one side and FIFA on the other must be determined.
8. In this regard, the Chamber referred to art. 22 b) of the Regulations, according to which it is competent to deal with a matter such as the one at hand unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the Association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to FIFA Circular no. 1010 dated 20 December 2005 and the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations which came into force on 1 January 2008 (underline added).
9. In view of the above, the Chamber went on to examine the documentary evidence presented by the Respondent, i.e. the copy of the “Statute of the Saudi Sport Arbitration Center” (hereinafter: the SSAC Statute).
10. In this regards, the Dispute Resolution Chamber reminded the parties of the contents of 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”.
11. In this respect, the Chamber acknowledged that according to the relevant part of the SSAC Statute established in its art. 8.2 that “the SSAC jurisdiction shall be applicable only when the dispute is reported in less than 21 days by the disputing parties through official channels as defined by the concerned regulation”.
12. In this respect, the Chamber considered that the existence a statute of limitations of only 21 days calculated as from the event giving rise to the dispute, is manifestly short and prejudices the right of a player to be heard.
13. Furthermore, after observing the contents of art. 10 and 11 of the SSAC Statute, as well as other applicable evidence sent in this regard, the Chamber understood that there is no sufficient evidence on how the arbitrators of the SSAC are appointed, and whether said appointments are compatible with the right to receive fair proceedings.
14. In addition, the Chamber also observed that the Procedural rules of the SSAS stated the following:
“10.1 The Party requesting arbitration (Claimant) shall pay the arbitration fees upon submitting a matter to the SSAC. In case the Claimant requests fast track arbitration, the Claimant shall pay the fees as prescribed. All the fees are non-refundable.”
15. In the opinion of the Chamber, the non-refundable nature of the arbitration fees may undermine the rights of the parties to be heard.
16. In sum, the Chamber considered that the Respondent failed to meet its burden of proof on whether the SSAC effectively guarantees fair proceedings. As a result, the Dispute Resolution Chamber confirmed that it is competent to deal with the matter at stake.
17. 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 the date when the claim was lodged, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.
18. 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.
19. In this respect, the Chamber first noted that, on 10 January 2020, the parties concluded an employment contract valid as from the date of signature until 1 June 2020, which was extended until 20 September 2020.
20. Thereafter, the Chamber observed that the Claimant lodged a claim before FIFA against the Respondent and requested, inter alia, to be paid with the outstanding salaries in the amount of SAR 140,000, equivalent to USD 37,333.
21. In relation to said request, the Chamber took note of the Respondent’s position, according to which it acknowledged that it owes to the player the amount of SAR 60,000, equivalent to USD 16,000.
22. As a result, the Chamber understood that the main legal issue at stake is to determine the exact amount that was due to the player.
23. In this respect, the Chamber recalled that the contract was extended until 20 September. As a result, the player was entitled to his remuneration until said date.
24. At this stage, the Chamber considered pertinent to recall the contents of art. 12 of the Procedural Rules, according to which “3. Any party claiming a right on the basis of an alleged fact shall carry the burden of proof. During the proceedings, the parties shall submit all relevant facts and evidence of which they are aware at that time, or of which they should have been aware if they had exercised due care” and “7. Evidence shall be considered with free discretion, taking into account the conduct of the parties during the proceedings, especially a failure to comply with a personal summons, a refusal to answer questions and the withholding of requested evidence.”
25. Within this context, the Chamber further noted that the player and the club signed a document in Arabic, stipulating a salary reduction for the months of April and May. In this respect, the Chamber expressed that, although the Claimant argued that the club imposed him to sign a document in a language he did not understand, the longstanding jurisprudence of the DRC establishes that a party signing a document of legal importance without knowledge of its precise content, as a general rule, does so on its own responsibility. Hence, the DRC dismissed the argument of the player in this regard.
26. The foregoing being established, and after duly examining the documentation gathered during the course of the investigation, as well as the position of the parties, the Chamber arrived to the conclusion that the player’s remuneration for July 2020 (USD 8,000), August 2020 (USD 8,000) and 20 days of September (USD 5,333, calculated on a pro rata basis), remained unpaid.
27. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution Chamber established that the Respondent has to pay to the Claimant, the total outstanding amount of USD 21,333, as detailed in the previous paragraphs.
28. 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 due dates.
29. 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.
30. 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.
31. 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.
32. 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, Antonio Filipe Norinho de Carvalho, is admissible
2. The claim of the Claimant is partially accepted.
3. The Respondent, Al Jabalain FC, has to pay to the Claimant, the amount of USD 21,333 as outstanding remuneration, plus interest as follows:
- 5% interest p.a. over the amount of USD 8,000 as from 1 August 2020 until the date of effective payment;
- 5% interest p.a. over the amount of USD 8,000 as from 1 September 2020 until the date of effective payment;
- 5% interest p.a. over the amount of USD 5,333 as from 21 September 2020 until the date of effective payment;
4. Any further claims of the Claimant are rejected.
5. 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.
6. 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).
7. 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.
8. This decision is rendered without costs.
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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