F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 21 February 2020

Decision of the

Dispute Res

olution Chamber

passed in Zurich, Switzerland, on 21 February 2020

in the following composition:

Clifford Hendel (USA), Deputy Chairman

Tomislav Kasalo (Croatia), member

Pavel Pivovarov (Russia), member

on the claim presented by the player,

Gary Mendes Rodrigues, Netherlands

represented by Mr Oktay Düzgün and Mr Jurriaan Zee

as “Claimant”

against the club

Ittihad FC, Saudi Arabia

represented by Mr Jan Kleiner and Mr Francisco Rapp

as “Respondent”

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 5 January 2019, the Dutch player, Garry Mendes Rodrigues (hereinafter: the Claimant or the player), the Saudi Arabian club, Al Ittihad (hereinafter: the Respondent or the club) concluded an employment contract (hereinafter: the contract) valid as of 7 January 2019 until 30 June 2023.

2. On 12 July 2019, the parties signed an amendment to the contract (hereinafter: amendment) due to the fact that the player went on loan to the Turkish club, Fenerbahçe until 31 May 2021.

3. Said amendment reads, inter alia, as follows: “[The player’s] obligation to provide his services as professional football player to [the club] shall be suspended for the duration of the loan period and the [the player] shall be allowed to join the team of Fenerbahçe. [The club’s] obligation to pay the salary to the Player shall be reduced as stipulated in this agreement. All other provisions of the employment contract between [the club] and [the player] shall remain in effect […]”.

4. According to this amendment, the Respondent undertook to pay to the Claimant the following salaries:

- EUR 850,000 on 15 July 2019;

- EUR 127,083.33 as monthly salary in 12 instalments between July 2019 and June 2020, due at the end of each month;

- EUR 850,000 on 15 July 2020;

- EUR 127,083.33 as monthly salary in 12 instalments between July 2020 and June 2021, due at the end of each month.

5. Moreover, the amendment established that: “Ittihad shall provide a car to the Player for a value corresponding to a monthly cost for Ittihad of EUR 2,000.00”.

6. After the Respondent failed to comply with its payment obligations agreed upon in the amendment, the Claimant sent several default notices to the club.

7. On 25 September 2019, the Claimant lodged a claim against the Respondent in front of FIFA and requested payment of “unpaid salaries up to September 2019” (i.e. EUR 1,257,988.33) as well as “payments for the remainder of the contract period” (i.e. EUR 13,135,443.40). Furthermore, the Claimant requested costs for “legal assistance (estimated) EUR 100,000.”

8. In his initial claim, the player stated that he “prefers not to annul his employment agreement, but he does request to sanction Ittihad FC until all outstanding amounts have been paid”. In a later submission, after being requested to complete his claim, the player maintained that the club made clear that it would not pay any amounts, so that he “is compelled to also claim his future payments”.

9. The Respondent failed to submit a reply to the claim within the stipulated time-limit, but remitted a payment of EUR 1,257,988.33 to the player after the investigation phase was already closed.

10. The player acknowledged receipt of a payment in the amount of EUR 1,257,888.33, where EUR 100 were deducted by the bank as costs, and insisted that “this is not the amount owed”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 25 September 2019. Consequently, the DRC concluded that the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition January 2020) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns a dispute with an international dimension between a Dutch player and a Saudi Arabian club in relation to an employment relationship.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition January 2020), and considering that the present claim was lodged on 25 September 2019, the June 2019 edition of said 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 that, the members of the Chamber acknowledged that, on 5 January 2019, the parties entered into a contractual relationship valid as of 7 January 2019 until 30 June 2013. Furthermore, the DRC noted that due to the loan of the player to a different club, the initial contract was amended on 12 July 2019 and that due to this amendment, the Respondent, inter alia, undertook to pay the player a monthly salary of EUR 127,083.33.

6. On account of the above, the Chamber noted that the Claimant lodged a claim against the Respondent requesting outstanding remuneration in connection with the amended contract. Furthermore, the DRC observed that the Claimant held that he “prefers not to annul his employment agreement, but he does request to sanction Ittihad FC until all outstanding amounts have been paid”. Moreover, the members of the Chamber noted that he also claimed as well as “future payments” since “it was clear that [the Respondent] would not pay any amounts”.

7. Subsequently, the DRC observed that the Respondent, in spite of having been invited to do so, had, for its part, failed to present its response to the claim of the Claimant within the relevant time limit set by FIFA, i.e. 30 October 2019. In fact, the reply of the Respondent was only received on 6 November 2019. As a result, bearing in mind the Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3 of the Procedural Rules, the Chamber decided not to take into account the reply of the Respondent and established that, in accordance with the aforementioned provision, it shall take a decision on the basis of those documents on file that were provided prior to the deadline set by FIFA, in casu, on the statements and documents presented by the Claimant.

8. Notwithstanding the above, the members of the Chamber noted that the Respondent remitted a payment of EUR 1,257,988.33 to the Claimant after the investigation phase was already closed.

9. Taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had substantiated his claim pertaining to outstanding remuneration with sufficient documentary evidence. Due to the fact that the player did not terminate the contract with the Respondent this matter concerns outstanding remuneration only. Therefore no “future payments” were taken into account by the Chamber as the employment relationship was still in force.

10. Taking into account the payment of EUR 1,257,988.33, acknowledged by the player, it appears that the players first part of the claim, concerning remuneration due until and including September 2019, was fulfilled. In this regard, the DRC pointed out that the Respondent has to reimburse the Claimant for the banking costs of EUR 100 occurred during said transaction.

11. Furthermore, the DRC acknowledged that the Claimant, as per amended contract, shall be entitled to the amount of EUR 516,332, corresponding to his salaries as of October 2019 until January 2020 (i.e. 4x EUR 127,083) as well as the car costs of EUR 2,000 per month, i.e. EUR 8,000.

12. Consequently, the DRC 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 516,432.

13. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 516,432 as from the respective due dates.

14. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

15. The DRC concluded its deliberations by rejecting any further claim of the Claimant.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Gary Mendes Rodrigues, is partially accepted.

2. The Respondent, Ittihad FC, has to pay to the Claimant the amount of EUR 516,432 as outstanding remuneration, plus interest until the date of effective payment as follows:

a. 5% p.a. as of 14 November 2019 on the amount of EUR 100;

b. 5% p.a. as of 1 November 2019 on the amount of EUR 129,083;

c. 5% p.a. as of 1 December 2019 on the amount of EUR 129,083;

d. 5% p.a. as of 1 January 2020 on the amount of EUR 129,083;

e. 5% p.a. as of 1 February 2020 on the amount of EUR 129,083.

3. Any further claim of the Claimant is rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision of the relevant bank account to which the Respondent must pay the amount mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due plus interest in accordance with point 2 above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

8. In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

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). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer