Al Qadsia SC v. Pablo Franco Martin

At a glance

Parties

Al Qadsia SC (Kuwait) v. Pablo Franco Martin (Spain)

Case no.

CAS 2022/A/8944

Forum and rules

Court of Arbitration for Sport, appeal procedure under the CAS Code (2021 edition)

Treaty

None; contract claim under a settlement agreement, FIFA regulations and Swiss law

Tribunal

Manfred Nan (Sole Arbitrator)

Sector

Football coach employment

Outcome

Appeal upheld (7 November 2023). The FIFA PSC decision was set aside and the coach's claim was dismissed.

Amount

Awarded by FIFA PSC: USD 154,000 plus 5% interest p.a. from 1 November 2021. Set aside on appeal. Nothing awarded.

The dispute

Kuwaiti club Al Qadsia SC and Spanish coach Pablo Franco Martin ended his employment contract (1 September 2020 to 30 June 2022) by a settlement agreement dated 20 May 2021. Under the agreement the club owed USD 52,000 in four instalments of USD 13,000. Article 4 entitled the coach to the remaining value of the employment contract if the club failed to pay all amounts by a grace period ending 31 October 2021. On that date USD 6,500 of the fourth instalment was still unpaid. The coach sent a notice on 6 November 2021 urging payment of "all the relevant payments" within 15 days, and the club paid the balance on 7 November 2021. The FIFA Players' Status Chamber then awarded the coach USD 154,000 under Article 4. The club appealed. It argued that Article 4 required a default notice, that it was an exclusive penalty for non-payment and did not punish late payment, that the coach's claim was an abuse of rights, and, in the alternative, that the penalty was disproportionate under Article 163(3) of the Swiss Code of Obligations (SCO) and should be reduced to reflect mitigation.

Key holdings

1. Article 4 of the Settlement Agreement is clear and needs no interpretation (in claris non fit interpretatio). The club had to pay everything by 31 October 2021. It did not prove that the parties intended the coach to send a default notice first. The Arabic text it relied on did not matter because the coach does not understand Arabic. ¶¶ 67–69
2. Under Article 102 SCO, a debtor who has agreed a term for performance is in default automatically once the term expires, without notice. The club therefore breached the Settlement Agreement, in principle, by paying part of the fourth instalment late. ¶¶ 69–70
3. The coach's letter of 6 November 2021 is read contra stipulatorem, against him as its author. Read that way, it gave the club a further 15 days to pay the outstanding USD 6,500, and the coach would claim the USD 154,000 only if the club failed to pay within that period. His later letter of 10 November 2021 does not change this, because the club had already paid. ¶¶ 76–85
4. The club paid within the extra grace period and so cured the breach in time. The coach is therefore not entitled to the remaining salaries of USD 154,000 under Article 4. The appeal is upheld, the FIFA PSC decision is set aside and the claim is dismissed. ¶¶ 86–89; operative part
5. The dispute is governed primarily by FIFA regulations, in particular the FIFA Regulations on the Status and Transfer of Players. Swiss law applies additionally, under Article 56(2) of the FIFA Statutes. ¶ 50

Procedural history

1. 20 May 2021The parties sign the Settlement Agreement ending the employment contract.
2. 6–7 November 2021The coach sends a default notice giving 15 days to pay. The club pays the remaining USD 6,500 the next day.
3. 21 February 2022The coach files a claim before the FIFA Players' Status Chamber.
4. 19 April 2022The FIFA PSC awards the coach USD 154,000 plus 5% interest. Its grounds are notified on 17 May 2022.
5. 6 June 2022The club files its Statement of Appeal with CAS.
6. 7 September 2022The Sole Arbitrator, Manfred Nan, is appointed.
7. 17 November 2022Hearing held by videoconference.
8. 7 November 2023Award: appeal upheld, FIFA decision set aside, claim dismissed.

Tribunal, counsel and experts

Decided by

• Manfred Nan Sole arbitrator, Court of Arbitration for Sport — appointed by the institution

For the claimant

Nilo Effori · Marc Cavaliero · Maxime van den Dijssel

For the respondent

Alejandro Pascual

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Keywords

• football coach
• settlement agreement
• late payment
• grace period
• penalty clause
• Article 102 SCO
• Article 18 SCO
• Article 160 SCO
• Article 163(3) SCO
• default notice
• contra stipulatorem
• in claris non fit interpretatio
• FIFA Players' Status Chamber
• FIFA RSTP
• venire contra factum proprium
• Kuwait

Summary generated with AI from the published documents — refer to the award for the authoritative text.