DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 11 marzo 2021 • Stagione sportiva: 2020/2021

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 11 March 2021

Decision of the

Dispute Resolution Chamber

passed on 11 March 2021

regarding an employment-related dispute concerning the player Gary Mendes Rodrigues

COMPOSITION:

Clifford J. Hendel (USA)/(France), Deputy Chairman Tomislav Kasalo (Croatia), member Mohamed Muzammil (Singapore), member

CLAIMANT:

Gary Mendes Rodrigues, Netherlands

Represented by Oktay Düzgün

RESPONDENT:

Ittihad FC, Saudi Arabia

I. FACTS

1. On 5 January 2019, the player and the club concluded a contract, valid 7 January 2019 and 30 June 2023 (hereinafter: the contract).

2. According to article 4 of the contract, the player is amongst others entitled to receive the following amounts:

- EUR 2,125,000 in the period between 7 January 2019 and 30 June 2019;

- EUR 4,250,000 for the season 2019/2020, to be paid as follows: EUR 850,000 no later than 15 July 2019 and the remaining amount in 12 equal instalments of EUR 283,333.33 by the end of each month (from July to June);

- EUR 4,250,000 for the season 2020/2021, to be paid as follows: EUR 850,000 no later than 15 July 2020 and the remaining amount in 12 equal instalments of EUR 283,333.33 by the end of each month (from July to June);

- EUR 4,250,000 for the season 2021/2022, to be paid as follows: EUR 850,000 no later than 15 July 2021 and the remaining amount in 12 equal instalments of EUR 283,333.33 by the end of each month (from July to June);

- EUR 4,250,000 for the season 2022/2023, to be paid as follows: EUR 850,000 no later than 15 July 2022 and the remaining amount in 12 equal instalments of EUR 283,333.33 by the end of each month (from July to June).

3. On 12 July 2019, the player and the club signed another agreement (hereinafter: the amendment to the contract), in connection with the player’s loan to the Turkish club Fenerbahce AS, in which they agreed that the player’s obligations towards the club would be suspended and that he would be on loan with Fenerbahce ‘for the seasons 2019/2020 and 2020/2021’ until 31 May 2021. Moreover, the salary costs of the player would be split between the club and Fenerbahce, as a result of which the player was entitled to receive inter alia the following amounts from the club:

- EUR 2,375,000 for the season 2019/2020, to be paid as follows: EUR 850,000 no later than 15 July 2019 and the remaining amount in 12 equal instalments of EUR 127,083.33 by the end of each month (from July to June);

- EUR 2,375,000 for the season 2020/2021, to be paid as follows: EUR 850,000 no later than 15 July 2020 and the remaining amount in 12 equal instalments of EUR 127,083.33 by the end of each month (from July to June).

4. On 17 October 2020, the player and the club signed a third agreement (hereinafter: the amendment dated 17 October 2020), based on which:

- the player confirmed that he had terminated the contract with Fenerbahce on 19 October 2020;

- the player and the club agreed that the player will return to the club, that the amendment to the contract would be terminated and that the employment conditions as from the season 2020/2021 would relive (Note: according to the information in TMS, the season 2020/2021 in Saudi Arabia started on 15 October 2020);

- additionally, the player would be entitled to an amount of EUR 100,000 in case ‘Ittihad FC receives the cup of the Arab Champions League’;

- finally, the player and the club agreed that the payments received by the player from Fenerbahce would have no effect on the contract of the player with Ittihad.

5. On 10 November 2020, the player put the club in default for the amount of EUR 1,729,166.66, providing the club a 10 days’ deadline to remedy its default, however to no avail.

6. On 26 November 2020, the player lodged a claim against the club before FIFA, claiming the following amounts:

- EUR 850,000 as unpaid sign-on fee that fell due on 15 July 2020;

- EUR 156,250 as unpaid part of the July 2020 salary, that fell due on 31 July 2020;

- EUR 156,250 as unpaid part of the August 2020 salary, that fell due on 31 August 2020;

- EUR 283,333.33 as the unpaid salary for September 2020, that fell due on 30 September 2020;

- EUR 283,333.33 as the unpaid salary for October 2020, that fell due on 31 October 2020.

No explicit request for interest was made by the club.

7. In his claim, the player explains that the club, on an unspecified date, indicated that ‘if he would return to Saudi Arabia for the season starting in October 2020, he would receive his full amount of salaries (EUR 4,250,000 per year)’, as well as that he was allowed to ‘keep any salaries and other monies received from Fenerbahce a.o. payments for the months July/August 202 and the termination fee of EUR 800,000’. As a result, the parties signed the agreement dated 17 October 2020.

8. What is more, the player explains that the club is now refusing to pay him the salaries as per the contract arguing that ‘the payments received from Fenerbahce for the period through October 2020 should be set off against those salaries’.

9. Despite having been invited to do so, the club failed to reply to the player’s claim.

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 26 November 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 October 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake. The matter concerns an employment-related dispute with an international dimension between a Dutch player and a Saudi Arabian club, and the competence is not disputed by the parties.

3. In continuation, 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 (October 2020 edition), and considering that the claim was lodged on 26 November 2020, the October 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. 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.

5. Having said this, the DRC acknowledged that the Claimant and the Respondent signed an employment contract valid between 7 January 2010 and 30 June 2023, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the following amounts:

- EUR 2,125,000 in the period between 7 January 2019 and 30 June 2019;

6. Moreover, on 12 July 2019, the Claimant and the Respondent signed an amendment to the contract, based on which the Claimant would be loaned to Fenerbahce, as a result of which the contract between the Claimant and the Respondent would be suspended and the salary costs for the Claimant would be split between Fenerbahce and the Respondent.

7. Also, on 17 October 2020, the Claimant and the Respondent concluded another agreement, based on which it was inter alia agreed that the contract between the Claimant and the Respondent would ‘relive’ as from the season 2020/2021, as well as that ‘payments received by the player from Fenerbahce would have no effect on the contract of the player with Ittihad’.

8. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards him in the total amount of EUR 1,729,166.60, corresponding to the unpaid sign-on fee that fell due on 15 July 2020 in the amount of EUR 850,000, the unpaid parts of the July and August 2020 in the amount of EUR 156,250 each, as well as the unpaid salaries for September and October 2020 in the amount of EUR 283,333.33 each.

9. In this context, the Chamber took particular note of the fact that, on 10 November 2020, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a 10 days’ time limit in order to remedy the default.

10. Consequently, the Chamber concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligation(s).

11. Subsequently, the Chamber took into account that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the Chamber considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

12. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

13. Having said this, the Chamber acknowledged that, in accordance with the employment contract, the amendment to the contract and the amendment dated 17 October 2020, provided by the Claimant, the Respondent was obliged to pay to the Claimant the original agreed amount of EUR 4,250,000 per season. In this respect, the Chamber deemed that in view of the contents and wording of art. 1.5 of the agreement dated 17 October 2020, the parties explicitly agreed that any amounts received by the Claimant from Fenerbahce, would not affect the financial obligations as per contract between the Claimant and the Respondent. As a result, the Chamber deemed that – irrespective whether the season in Saudi Arabia effectively started – the total amount of EUR 4,250,000 was due.

14. Taking into account the documentation presented by the Claimant in support of his petition, the Chamber concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence.

15. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 1,729,166.60 to the Claimant, broken down as follows:

- EUR 850,000 as unpaid sign-on fee that fell due on 15 July 2020;

- EUR 156,250 as unpaid part of the July 2020 salary, that fell due on 31 July 2020;

- EUR 156,250 as unpaid part of the August 2020 salary, that fell due on 31 August 2020;

- EUR 283,333.33 as the unpaid salary for September 2020, that fell due on 30 September 2020;

- EUR 283,333.33 as the unpaid salary for October 2020, that fell due on 31 October 2020.

16. In addition, the Chamber established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

17. Consequently, the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 1,729,166.60.

18. In continuation, taking into account the consideration under number II./14. and II./15. above, the Chamber referred to art.12bis par. 2 of the Regulations which stipulates that any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.

19. The Chamber established that by virtue of art. 12bis par. 4 of the Regulations, it has competence to impose sanctions on the Respondent. On account of the above and bearing in mind that the Respondent did not reply to the claim of the Claimant, the Chamber decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amount due of currency total amount payable, the Chamber regarded a fine amounting to CHF 30,000 as appropriate and hence decided to impose said fine on the Respondent.

20. In this connection, the DRC wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

21. 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.

22. 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.

23. 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.

24. 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, Gary Mendes Rodrigues, is accepted.

2. The Respondent, Ittihad FC, has to pay to the Claimant, the following amount:

- EUR 1,729,166.60 as outstanding remuneration

3. A fine in the amount of CHF 30,000 is imposed on the Respondent.

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 mentioned under point 2.

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).

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777