FIFA - Decisión disputa Rayhi 29062023 (1)

REF. FPSD-10001

Decision of the Dispute Resolution Chamber passed on 29 June 2023 regarding an employment-related dispute concerning the player Mohamed Rayhi BY: Frans de Weger, the Netherlands

CLAIMANT:

Mohamed Rayhi, the Netherlands Represented by Ruiz-Huerta & Crespo Sports Lawyers

RESPONDENT:

Al Batin, Saudi Arabia pg. 2

REF. FPSD-10001

I. Facts of the case

1. On 1 October 2020, the Dutch player, Mohamed Rayhi (hereinafter: the player or the Claimant), and the Saudi club, Al Batin (hereinafter: the club or the Respondent), concluded an employment contract valid as from 30 September 2020 until 30 June 2022 (hereinafter:

the Employment Contract).

2. In accordance with Item 4 of the Employment Contract, the club undertook to pay to the player inter alia a monthly salary of EUR 45,833 during the 2021/2022 season.

3. The same Item 4 of the Employment Contract also established the following, quoted verbatim: “In the event that [the club] fails to comply with the payment of any of the aforementioned instalment within the agreed deadline, [the player] will send a 15-days default notice to [the club]. In the event [the club] does not comply with said payment within the 15 days granted, default interest at a rate of 5% per annum will apply as from the agreed deadline until the effective date of payment. [...] All amounts provided are understood to be net of all types of taxes, withholdings, income and payments on account rates and/or any present or future tax that will be applicable to said income in KSA, in such way that [the club] undertakes to pay [the player] the corresponding gross amount at all times so that the liquid amounts committed to [the player] in each case are reached. In the event that the remuneration paid by [the club]

does not reach the net amount committed in each case, the club will proceed to indemnify [the player] with the additional gross amount sufficient to guarantee in any case the previously mentioned liquid amount, also considering the corresponding taxation to the aforementioned additional gross amount”.

4. On 30 May 2021, the club’s team won the match against the Saudi club, Al Ain Football Club, and avoided relegation to the lower division of the national league. During the celebration, the president of the club was recorded in video promising each player a bonus of SAR 125,000 each. The event and the promise were also reported in the local media

(hereinafter: the Bonus).

5. By correspondence dated 5 July 2022, the player put the club in default of payment of EUR 137,499 net (i.e., the salaries of April, May, and June 2022) setting a 15 days’ time limit in order to remedy the breach.

6. On 12 August 2022, the player filed a first claim against the club in front of the FIFA DRC, which was filed under ref. no. FPSD-7047 (hereinafter: the First Claim). Accordingly, the player requested to be awarded the outstanding salaries per the Employment Contract. pg. 3

REF. FPSD-10001

7. On 13 October 2022, the FIFA DRC passed its decision in connection with the First Claim, the grounds of which were notified to the parties on 1 November 2022 (hereinafter: the DRC Decision). Accordingly, the player was awarded the claimed amount of EUR 137,499 net plus interests as outstanding remuneration.

8. Neither the First Claim nor the DRC Decision made any reference to the Bonus. No appeal was lodged against the DRC Decision.

II. Proceedings before FIFA

9. On 21 April 2023, the player filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the player

10. In his claim, the player claimed to be entitled to an additional payment of SAR 125,000 (EUR 31,580), corresponding to the Bonus, publicly promised by the club’s president on 30 May

2021. He furthermore explained that such amount was not considered in the DRC Decision, hence it was still pending and due.

11. In addition, the player also claimed interest of 5% p.a. over such amount as from date of default until the effective payment.

b. Position of the club

12. On 11 June 2023, the club filed its reply to the claim of the player.

13. First and foremost, the club argued that the claim is inadmissible as it constitutes res judicata. In particular, the club pointed out to the fact that the claimed Bonus was already due at the time the First Claim was lodged, hence this issue cannot be raised at this stage.

14. Alternatively, the club argued that the promise was – in any scenario – invalid as had not been done in writing nor in an individual basis.

15. In conclusion, the club’s requests for relief were as follows, quoted verbatim: “In light of all the above and also under consideration of the factual and legal aspects as outlined in our present position we respectfully respect the FIFA: 1.1. To reject the player’s claim in its entirety; 1.2. To rule that the player’s claim is inadmissible; or pg. 4

REF. FPSD-10001 1.3. Alternatively, if the player’s claim is admissible, to tule that the promise in question is invalid”. c. Unsolicited correspondences by the parties

16. On 12 June 2023, the FIFA general secretariat acknowledged receipt of the club’s reply and informed the parties that the submission phase of the proceedings at hand was closed (cf. art. 23 of the Procedural Rules Governing the Football Tribunal).

17. On 20 and 21 June 2023, the parties filed unsolicited correspondences regarding the jurisprudence of the Football Tribunal in connection with the dispute.

III. Considerations of the Dispute Resolution Chamber

18. First of all, the Single Judge of the DRC (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 21 April 2023 and submitted for decision on 29 June 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

19. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22, par. 1, lit. b) of the Regulations on the Status and Transfer of Players (March 2022 edition), the DRC is – in principle – competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Dutch player and a Saudi club.

20. Nevertheless, the Single Judge acknowledged that the club challenged the admissibility of the claim. As such, the Single Judge proceeded accordingly to examine the issue.

21. In doing so and as a departure point, the Single Judge acknowledged that the case at hand pertains to a claim for outstanding remuneration, consisting of the Bonus, promised by the club’s president to the players after avoiding relegation to the lower division of the national league in Saudi Arabia.

22. The Single Judge observed that it remained undisputed that the Bonus was indeed promised by the club’s representative during the celebrations by the team, which was also recorded in video and reported by the media. The Single Judge was also observant that the

claimed amount was assumedly not paid by the club. Along these lines, the Single Judge remarked that the club disputes the player’s entitlement to the Bonus based on the reasons detailed below – but stressed, once again, that the fact that a promise was made by the club’s president is not challenged by the Respondent: pg. 5 REF. FPSD-10001 • The player had already lodged the First Claim before the DRC, which did not include the concept of the Bonus. Therefore, it constitutes res judicata and can no longer be entertained; and • The Bonus was never promised in written form; therefore, it was not valid.

23. Having established the above, the Single Judge initially recalled that the principle of res judicata ensures that whenever a dispute has been defined and decided upon, it becomes irrevocable, confirmed, and deemed to be just – res judicata pro veritate habetur. In particular, the Single Judge underlined that this principle applies whenever three elements are concurrently present, namely: The same persons - eadem personae; o The same object - eadem res; o The same cause - eadem causa petendi. o

24. On this note, the Single Judge went on to analyse the evidence on file regarding the previous decision allegedly passed in an identical matter. In this respect, he observed that indeed a decision (i.e., the DRC Decision) had been passed by a competent deciding body

(i.e., the FIFA DRC) on 13 October 2022, which was final and binding by now.

25. Furthermore, the Single Judge underlined that the principle of res judicata is applicable if cumulatively and necessarily the parties to the disputes and the object of the matter in dispute are identical. In this respect, he noted that both the player and the club were the parties in the proceedings leading to the DRC Decision as well as in the dispute at stake. As a consequence, the Single Judge came to the conclusion that the condition of the identity

of parties is fulfilled.

26. The Single Judge then turned his attention to the criterion of the object of the matter in dispute. In this respect, he started by acknowledging that the identity of the subject matter is fulfilled if the reason to claim and the relevant requests of the two claims are similar.

When comparing the First Claim to the one at hand, the Single Judge acknowledged that their objects are not the same: whilst the First Claim was limited to the outstanding salaries under the Employment Contract, the claim at hand envisages to discuss the player’s entitlement to the Bonus as promised by the club’s president.

27. Consequently, and as opposed to the argumentation of the player, the Single Judge was firm to determine that the Bonus now claimed by the player was not assessed by the FIFA DRC in the DRC Decision. In fact, it could have never been, because it was not claimed then.

Therefore, he concluded that the requirements for the existence of res judicata are not formally met (see, in this regard, CAS 2020/A/6884 Soukeyna Ba Bengelloun v. FIFA & PFC CSKA-Sofia).

28. Notwithstanding the above, the Single Judge was also of the opinion that the (procedural) pg. 6

REF. FPSD-10001 behaviour of the player cannot be overlooked. In the Single Judge’s view, it was clear from the documentation on file that by the time the First Claim was lodged, the Bonus was already due. As such, the Single Judge considered that the player not only could but should have requested the Bonus together with the other concepts sought per the First Claim. However, as the Bonus was not requested then, the Single Judge found that the player is precluded from launching a new proceeding now for that concept. The principle of preclusion, as a general principle of law, denotes that the parties must (procedurally) act in good faith and file the entirety of their requests in the appropriate time, under penalty of being prohibited from doing so at a later stage.

29. Any different conclusion from the one above would jeopardize the spirit of the Procedural Rules, for parties would be able to file independent claims as they please. This contravenes not only the principles of good procedural order and procedural economy, but also the due process and, ultimately, legal certainty within the FIFA dispute resolution system.

30. By the same token, the Single Judge underscored that the submission of a First Claim and then a different one against the same party for amounts that could already been claimed harmed the legitimate expectation of the debtor (in casu, the club), which is also be reprehensible in line with the doctrine of venire contra factum proprium. Not claiming the Bonus within the context of the First Claim, quite clearly, generated the (legitimate) expectation on the Respondent that this concept was not in dispute.

31. In conclusion, the Single Judge decided that the claim of the player is inadmissible.

32. Lastly, the Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.

33. Likewise, the Single Judge recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings. pg. 7

REF. FPSD-10001

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Mohamed Rayhi, is inadmissible.

2. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 8

REF. FPSD-10001

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 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 17 of the Procedural Rules Governing the Football

Tribunal).

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 pg. 9