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 23 April 2020

Decision of the

Dispute Resolution Chamber

passed on 23 April 2020,

in the following composition:

Geoff Thompson (England), Chairman

José Luis Andrade (Portugal), member

Stijn Boeykens (Belgium), member

on the claim presented by the player,

Luis Antonio Jimenez Garces, Chile,

represented by Mr Salvatore Civale

as Claimant

against the club,

Al Ittihad, Saudi Arabia,

represented by Mr Jan Kleiner

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 10 July 2019, the player, Luis Antonio Jimenez Garces (hereinafter: Claimant), and the club, Al Ittihad (hereinafter: Respondent), signed an employment contract (hereinafter: contract), valid as from 1 July 2019 until 30 June 2020.

2. According to Item 5 of the contract, the Respondent undertook to pay the Claimant, inter alia, a total net salary of USD 1,500,000 for season 2019/2020, payable in 12 instalments of USD 125,000 each.

3. On 28 September 2019, the parties signed a termination agreement, as per which the Respondent undertook to pay the Claimant the amount of USD 550,000 by no later than 31 October 2019. Furthermore, as per the termination agreement, in case of non-payment, the Claimant had the right to claim “payment of the full remaining amount under his existing employment contract” before “the FIFA Dispute Resolution Chamber”.

4. On 5 November 2019, the Claimant informed the Respondent in writing that it had failed to pay him the amount of USD 550,000 as stipulated in the termination agreement. Consequently, the Claimant now requested payment of the amount of USD 1,375,000, corresponding to the residual value of the employment contract, granting the Respondent a 5-day deadline to remedy the default.

5. On 12 November 2019, the Respondent ordered the payment to the Claimant of USD 550,000, as per the termination agreement.

6. On 15 November 2019, the Claimant acknowledged that the amount of USD 550,000 was deposited in his bank account.

7. On 6 December 2019, the Claimant lodged a claim against the Respondent for outstanding remuneration in front of FIFA, requesting the payment of the amount of USD 825,000 plus 5% interest p.a. as from 10 November 2019, corresponding to the total remuneration for season 2019/2020 (USD 1,500,000) minus the salary of July 2019 which he received late (USD 125,000) and minus the amount paid in accordance with the termination agreement (USD 550,000).

8. In his claim, the Claimant firstly outlined that he received his first salary (for July 2019 in the amount of USD 125,000) with a delay of almost 3 months.

9. In continuation, the Claimant again acknowledged that he received the amount of USD 550,000 from the Respondent, but stressed that this payment was made after the established deadline of 31 October 2019.

10. Due to the Respondent’s late payment, and referring to the termination agreement, the Claimant understood that he was entitled to the value of the employment contract minus the amounts already received, i.e. USD 825,000.

11. In its reply, the Respondent rejected the Claimant’s claim, arguing that the Claimant failed to mention several “key facts”.

12. In this respect, the Respondent firstly referred to a WhatsApp conversation in which the Claimant held the following: “I will wait until November 15, 3 more days, our agreement expired on October 31 mean 2 weeks ago…”.

13. Subsequently, according to the Respondent, after having made the payment on 15 November 2019, it informed the Claimant and his legal representative that the payment was made. In this light, as per the Respondent, in reply to the payment, the Claimant informed the Respondent via WhatsApp of the following: “Thank you so much [...] the only thing missing is you to pay the 5000 euros fee the lawyer is asking for the cause and to finish it”.

14. According to the Respondent, it “quickly agreed to make such a contribution in good faith”. However, as per the Respondent, no invoice regarding the EUR 5,000 was ever issued by the Claimant.

15. Having said this, the Respondent recalled that by means of another WhatsApp message, the Claimant held that his lawyer is “asking 20k he send everything to FIFA this morning”. Thus, and with regard to this new petition by the Claimant, the Respondent argued that such a request is “unacceptable”.

16. Given all of the above, and in particular given the fact that the Respondent paid the Claimant EUR 550,000 by 15 November 2019 as agreed by the Claimant, the Respondent concluded that the Claimant’s claim is to be rejected in its entirety.

17. On 1 January 2020 the Claimant signed a new employment contract with the Chilean club, Deportivo Palestino, valid as from 1 January 2020 until the end of the 2021 season (31 December 2021) according to which he was entitled to a monthly salary of CLP (Chilean Pesos) 4,000,000.

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 6 December 2019. Taking into account the wording of art. 21 of the 2019 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 and par. 2 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 the matter at stake, which concerns an employment-related dispute with an international dimension between a Chilean player and a Saudi Arabian club.

3. In continuation, 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 and considering that the present claim was lodged on 6 December 2019, the October 2019 edition of the said regulations (hereinafter: 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 and arguments as well as the documentation on file. 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. In this respect, the Chamber firstly recalled that the Claimant and the Respondent signed an employment contract valid as from 1 July 2019 until 30 June 2020. In continuation, the DRC took into account that on 28 September 2019, the parties signed a termination agreement, as per which the Respondent undertook to pay the Claimant the amount of USD 550,000 by no later than 31 October 2019.

6. In this regard, the Chamber further noted that, as per the termination agreement, in case of non-payment, the Claimant had the right to claim “payment of the full remaining amount under his existing employment contract” before “the FIFA Dispute Resolution Chamber”.

7. In continuation, the DRC recalled that the Claimant lodged a claim before FIFA requesting the payment of the amount of USD 825,000, corresponding to the total remuneration for season 2019/2020 (USD 1,500,000) minus the salary of July 2019 which he received late (USD 125,000) and minus the amount paid in accordance with the termination agreement (USD 550,000).

8. In light of the above, the Chamber established that the primary issue at stake is determining as to whether the Claimant was in a position to claim “payment of the full remaining amount under his existing employment contract” as stipulated in the termination agreement, given that the Respondent had failed to pay him the amount of USD 550,000 by 31 October 2019.

9. In this context, the DRC took into account the Claimant’s position, who inter alia argued that due to the Respondent’s late payment, he was entitled to the value of the employment contract minus the amounts already received, i.e. USD 825,000.

10. Similarly, the Chamber recalled that, as per the Respondent, the Claimant had subsequently agreed on a deadline of 15 November 2019 for the Respondent to pay the amount of USD 550,000.

11. Having recalled the above, the Chamber firstly highlighted that it remained undisputed that the Claimant received the amount of USD 550,000 from the Respondent by 15 November 2019.

12. In continuation, the DRC turned its attention to the evidence provided by the Respondent, and established that the Claimant had indeed granted the Respondent an extension to pay the amounts as stipulated in the termination agreement until 15 November 2019.

13. Consequently, the Chamber determined that the Respondent had fulfilled its obligation to pay to the Claimant the amount of USD 550,000 within the deadline provided by the Claimant, i.e. 15 November 2019.

14. As a result, the DRC concluded that there was no more outstanding remuneration due to the Claimant, and that the Claimant was not in a position to request “payment of the full remaining amount under his existing employment contract” as stipulated in the termination agreement.

15. Therefore, the Chamber decided to reject the Claimant’s claim for outstanding remuneration in the amount of USD 825,000.

16. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the claim lodged by the Claimant is rejected in its entirety.

*****

Decision of the Dispute Resolution Chamber

The claim of the Claimant, Luis Antonio Jimenez Garces, is rejected.

*****

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 art. 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.

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