Al-Raed FC v. Mohamed Ahmed Atwa Ahmed Aboustait

II. FACTUAL BACKGROUND

3. Below is a summary of the main relevant facts and allegations based on the Parties’ submissions. Additional facts and allegations may be set out, where relevant, in connection with the legal discussion that follows. Although the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, he refers in this Award only to the submissions and evidence he considers necessary to explain his reasoning.

A. Background of the dispute

4. On 27 January 2018, the Club and the Player concluded an employment contract (the “Contract”).

5. On 23 July 2019, the Club and the Player signed a “Financial Clearance” (the “Agreement”), according to which the Club committed itself to pay to the Player the amount of Saudi Riyal (SAR) 379,642, payable within 60 days as from the day of signature of the Agreement.

6. On 24 November 2019, the Player allegedly put the Club in default of payment, arguing that he had not received any amount from the Club.

7. On 4 January 2020, in absence of any response from the Club, the Player lodged a claim in front of the Dispute Resolution Chamber of the FIFA (the “DRC”) against the Club alleging that the latter had breached the Agreement and requesting the payment of SAR 379,642, plus 5% interest p.a. as of the due date.

8. The Club did not file any answer to the claim, allegedly because it didn’t receive any correspondence from the DRC.

B. The Decision of the Dispute Resolution Chamber

9. On 5 May 2020, the Single judge of the DRC rendered his decision (“Appealed Decision”) the operative part of which reads as follows (emphasis in original):

“1. The claim of the Claimant, Mohammed Ahmed Atwa Ahmed Aboustait, is accepted.

2. The Respondent, Al-Raed Saudi Club, has to pay the Claimant SAR 379,642, plus interest at the rate of 5% p.a. as from 24 August 2019 until the date of effective payment.

3. 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 plus interest mentioned under point III.2. above.

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

5. In the event that the amount plus interest due in accordance with point III.2. 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 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).

6. The ban mentioned in point III.5. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

7. 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”.

10. In the Appealed Decision, the Single Judge, inter alia:

- took into account that the Club, for its part, had failed to present its response to the claim of the Player, in spite of having been invited to do so.

- considered that the Club had renounced its right to defence.

- decided to take a decision upon the basis of the documents already on file, i.e. the statements and documents presented by the Player.

- concluded that the Player had substantiated his claim pertaining to outstanding remuneration of SAR 379,642 with sufficient documentary evidence and that the Club had failed to remit the Player’s remuneration in total.

- decided that, in accordance with the general legal principle of pacta sunt servanda, the Club was liable to pay to the Claimant outstanding remuneration in the total amount of SAR 379,642.

- decided that, in account of the Player’s request as well as the constant practice of the DRC in this regard, the Club must pay to the Player interest of 5% p.a. on the aforementioned amount as of the due date, i.e. 24 August 2019, until the date of effective payment.

11. The grounds of the Appealed Decision were supposedly notified to the Parties on 10 June 2020. However, it follows from a letter from the FIFA, dated 6 July 2020, that, due to an oversight, the grounds of the Appealed Decision were not duly notified to the Club on 10 June 2020, as these grounds were sent to incorrect email addresses. The grounds of the Appealed Decision were attached to the letter dated 6 July 2020. According to FIFA, this letter has to be considered as notification of the Appealed Decision to the Club, whereas the date of 10 June 2020 is to be considered as the date on which the grounds of the Appealed Decision were notified to the Player.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

12. On 17 July 2020, in accordance with Article R47 of the Code of Sports-related Arbitration (the “Code”) (2019 edition), the Appellant filed its Statement of Appeal with the Court of Arbitration for Sport (“CAS”) against the Respondent with respect to the Appealed Decision. In its Statement of Appeal, the Appellant appointed Mr Wouter Lambrecht, Attorney-at-law in Barcelona, Spain, as arbitrator.

13. On 23 July 2020, the CAS Court Office informed the Respondent of the initiation of the present appeals proceedings against him as well as of the possibility to start a mediation procedure under the CAS rules and invited the Appellant to file its Appeal Brief within the deadline stated in Article R51 of the Code. Separately, on the same day, the CAS Court Office informed the FIFA of its possibility to request its intervention to the present proceedings.

14. On 26 July 2020, the Respondent informed the CAS Court Office that he refused to pay his

share of the advance of costs, that he considered the appeal to be filed outside of the deadline, and that he requested French as the language of the proceedings. Further, the Respondent nominated Mr Augustin E. Senghor, Attorney-at-Law in Dakar, Senegal, as arbitrator.

15. On 28 July 2020, the CAS Court Office acknowledged receipt, on 27 July 2020, of a letter from the Appellant in which it maintained its proposal to have a bi-lingual procedure (English/French) and that, as consequence of the Respondent’s refusal to pay his share of advance of costs, it requested the matter to be submitted to a sole arbitrator who would be appointed by the President of the CAS Appeals Arbitration Division.

16. On 31 July 2020, the Respondent informed the CAS Court Office that he objected to the appointment of a sole arbitrator in the present proceedings.

17. On 3 August 2020, the Respondent informed the CAS Court Office that he agreed with a bilingual procedure.

18. On 4 August 2020, the CAS Court Office acknowledged receipt of the Respondent’s agreement to a bilingual procedure (English/French) and informed the Parties that, pursuant to Article R50 of the Code, the Deputy President of the CAS Appeals Arbitration Division has decided to submit the present case to a sole arbitrator.

19. On 5 August 2020, the CAS Court Office informed the Parties that Mr Jacques Radoux, Legal Secretary to the European Court of Justice, Luxembourg, had been appointed as Sole Arbitrator by the Deputy President of the CAS Appeals Arbitration Division to hear the present appeal.

20. On the same day, the CAS Court Office acknowledged receipt of FIFA’s letter of that day, informing the CAS that that “FIFA renounces its right to request its possible intervention in the present arbitration proceedings”.

21. On 17 August 2020, the CAS Court Office acknowledged receipt of the Appeal Brief filed on 14 August.

22. On 24 August 2020, the CAS Court Office acknowledged receipt of the Appellant’s payment of the total of the advance of costs for the present appeal procedure. Further, it invited the Respondent to submit his answer within 20 days in accordance with Article R55 of the Code and informed the Parties that the Panel appointed to decide on the present proceedings was constituted as follows:

Sole Arbitrator: Mr Jacques Radoux, Référendaire, European Court of Justice, Luxembourg

23. On 16 September 2020, the CAS Court Office acknowledged receipt of the Respondent’s Answer, filed on 13 September 2020, and invited the Parties to state whether they would prefer a hearing to be held in the present matter.

24. On the same day, the Appellant answered that it preferred a hearing to be held in the present

matter. The Respondent did not provide any answer.

25. On 28 September 2020, the CAS Court Office informed the Parties that the Sole Arbitrator had decided to hold a hearing in the present matter.

26. On 7 October 2020, the CAS Court Office sent to the Parties an Order of Procedure, requesting them to return a signed copy of it to the CAS Court Office. On the same day, the CAS Court Office acknowledged receipt of the copy of the Order of Procedure as signed by the Appellant. The Respondent, although having committed, during the hearing, to signing the Order of Procedure, has not returned a signed copy of that Order of Procedure to the CAS Court Office.

27. On 22 October 2020, a hearing was organised from Lausanne, Switzerland. Due to COVID- 19 restrictions, the hearing was entirely held via video-conference (cisco webex). The Sole Arbitrator was assisted by Ms Delphine Deschenaux-Rochat, counsel to the CAS, who was physically present at the CAS Court Office. The Sole Arbitrator was joined by the following participants:

For the Appellant:

Mr Ali Abbes, counsel

For the Respondent:

Mr Habib Grami, counsel

IV. THE PARTIES’ SUBMISSIONS

28. The following summary of the Parties’ positions is illustrative and does not necessarily include each and every contention put forward by the Parties. The Sole Arbitrator, however, has carefully considered all the submissions made by the Parties, even if no explicit reference is made in what immediately follows.

29. The Appellant’s submissions may be summarized as follows:

• The jurisdiction of the Panel to decide upon the present matter is based on Articles 57 and 58 of the FIFA Statutes and Article R47 of the Code. In addition, the present appeal is admissible as it was initiated within the time limit provided under Article R49 of the Code. Indeed, due to an error of the FIFA, the Appealed Decision was only notified to the Appellant on 6 July 2020 and not, as argued by the Respondent, on 10 June 2020. This error occurred because the DRC used a wrong email address to communicate with the Appellant. This error explains as well the absence of the Club in the proceedings before the DRC: it was not aware of these proceedings.

• As to the applicable law, the Appellant considers that pursuant to Article R58 of the Code, the Arbitration Panel should decide the matter first according to the applicable

regulations. In this case, Article 57.2 of the FIFA Statutes, pursuant to which “the CAS shall primarily apple the various regulations of FIFA and, additionally, Swiss law”.

• As to the merits, the Appellant submits that, the sole question to be resolved in the present matter concerns the exact debt that the Club has vis-à-vis the Player. In this regard, the Appellant argues that it has paid, on 2 December 2019, the amount of SAR 150,000 to the account of A. and that the said amount was then to be transferred to the Respondent. This way of payment had been followed in the past, as the Respondent, who had decided not to acquire a resident permit in Saudi Arabia, did not have a bank account in Saudi Arabia. The Appellant being prohibited to proceed to payments in cash, the Appellant and the Respondent had agreed to pass through the Saudi bank account of another player, i.e. A.

• The submitted bank statements would show that the amount of SAR 150,000 was effectively transferred from A. to the Respondent.

• Further, it would be clear from messages exchanged via WhatsApp between the accountant of the Appellant and the Respondent that the latter was fully aware that the bank wire of SAR 150,000 had been processed.

• In view of the above, and in absence of any other reason for the Club to pay SAR 150,000 to the Respondent than as part of the Agreement, it would be clear that the Respondent acted in bad faith when he filed, on 4 January 2020, his claim to be paid the total amount due under the Agreement, i.e. SAR 379,642.

• Thus, the Appealed Decision should be modified in the sense that the Appellant’s debt versus the Respondent is only SAR 229,642.

• In its Appeal Brief, the Appellant submits the following requests for relief “A – The Appeal submitted by the club AL RAED is admissible. B – The decision taken by the single judge of DRC on 5 May 2020 has to be partially modified by fixing the debt at the amount of 229642 Saudi Rivals C – The arbitration costs to be carried out by the respondent. D – To oblige the respondent, to reimburse the appellant, with the advocacy costs, amounting to CHF 5,000.00”.

30. The Respondent’s submissions may be summarized as follows:

• The Appealed Decision has been notified to the Parties on 10 June 2020. Thus, the deadline to file the appeal expired on 30 June 2020. The second notification of the Appealed Decision, dated 6 July 2020, cannot be opposed to the Respondent, as the notification was not the Respondent’s responsibility. There are no legitimate reasons for the FIFA to proceed to a second notification and to infringe the Respondent’s rights and the procedure. In view of the above, it would be obvious that the statement of appeal on 17 July 2020 was not filed timely and that the appeal has to be dismissed.

• The arguments brought forward to establish that it has fulfilled part of its financial obligations under the Agreement show that the Appellant does not want to pay its debts towards the Respondent. Indeed, it would not be normal that a professional football club does not have a bank account it can use to make a money transfer and that it pays its debts to the Respondent via the bank account of another player, A., who is not aware of this transfer from his bank account on behalf of a third party.

• The witness statement of the Club’s accountant has no legal weight as the accountant is an employee of the Club and that statement is only a new episode of the Club’s scam.

• The player via who’s account the payment of SAR 150,001 has allegedly been done denies that the Club has asked him to transfer that amount from his account to the Respondent’s account. The Club would, recently, have tried to get an admission by the A. in this respect. This would show the Club’s bad faith.

• A. further denies that the Club gave him some money in order to transfer it to the Respondent and is willing to testify in the present procedure.

• In view of the above, it has to be concluded that the Appellant has not fulfilled its obligations from the Agreement and has no solid and reliable proof of the contrary, in particular concerning the amount of SAR 150’001.

31. The Respondent therefore requested the Panel to decide as follows: “1. Veuillez rejeter l’appel de Al Raed club.

2. Veuillez imposer les frais de l’arbitrage à l’appelant.

3. veuillez imposer à l’appelant de rembourser à l’intimé les frais d’Avocatie d’un montant de 5000 dollars”.

[free translation:

1. To reject the appeal of Club Al-Raed.

2. To order the appellant to bear the costs of the arbitration.

3. To order the Appellant to reimburse the Respondent’s lawyer’s fees of an amount of USD 5’000].