Al-Shabab Club v. Makhete Diop

At a glance

Parties

Al Shabab Football Club (Saudi Arabia) v. Makhete Diop (Senegalese professional footballer)

Case no.

CAS 2021/A/8156

Forum and rules

Court of Arbitration for Sport, appeal under the CAS Code (2020 edition) against a FIFA Dispute Resolution Chamber decision

Treaty

Employment contract; FIFA Regulations on the Status and Transfer of Players, FIFA COVID-19 Guidelines; Swiss law subsidiarily

Tribunal

Manfred Nan (President), Daniele Moro, Ulrich Haas

Sector

Professional football; player employment

Outcome

Appeal dismissed (17 October 2022). The FIFA DRC decision of 3 June 2021 was confirmed in full.

Amount

In dispute on appeal: EUR 521,115 in salary withheld for March–July 2020. The FIFA DRC decision, confirmed, awarded outstanding remuneration (including the EUR 521,115 and a EUR 500,000 signing-fee instalment), SAR 151,000 for accommodation and EUR 2,463,615 as compensation, all with 5% interest a year.

The dispute

Al Shabab, a club in the Saudi Pro League, signed Makhete Diop on 2 January 2020 for 3 January 2020 to 2 July 2021. The contract provided a monthly salary of EUR 222,223 and a signing fee of EUR 2,000,000. When football was suspended for COVID-19, the club cut the part of each player's monthly salary above SAR 20,000 by 50%, backdated to 15 March 2020, by a notice dated 17 April 2020. On 18 January 2021 it terminated the contract because the player had become "surplus" to the squad. Before the FIFA DRC and on appeal, the club accepted that it had terminated without just cause and that it owed the other amounts. It challenged only the EUR 521,115 withheld for March–July 2020, arguing that the player had agreed to the cut or had not objected to it, and that the cut was allowed under FIFA Circular no. 1714 and the amended Saudi labour law.

Key holdings

1. The club bears the burden of proving that the player agreed to the cut (Article 12(3) of the FIFA Procedural Rules; Article 8 of the Swiss Civil Code). It is doubtful that he ever received the 17 April 2020 letter. His silence was not acceptance, because not objecting is not the same as agreeing. The Panel was not convinced that he consented. ¶¶ 74–87
2. Under the FIFA COVID-19 Guidelines, a unilateral change is upheld only if no collective agreement can be reached and the change is valid under national law or is made in good faith, reasonable and proportionate. The club made no good-faith attempt to negotiate with the player or the squad, so national law did not come into play. ¶¶ 95–103
3. Even if Saudi labour law applied, the 50% cut exceeded the 40% ceiling the club relied on. That ceiling is a maximum that still needs justification, not a right the club can use at will, and the club gave no justification. ¶¶ 104–108
4. COVID-19 is not force majeure in itself. FIFA Circular no. 1720 corrected Circular no. 1714 on this point. The club's claimed loss of income of SAR 37,000,000 rested only on witness testimony. It did not show a real disruption of its finances or a lack of alternative resources, for example by filing its 2020 financial statements. ¶¶ 109–118
5. The cut was excessive and disproportionate. It shifted the economic risk of the pandemic almost entirely onto the players and did not share it fairly. The club also failed to show that it applied the cut consistently to all players, which leaves possible discrimination open. The cut therefore has no legal effect, and the player is owed his full salary for March–July 2020. ¶¶ 120–127
6. The rest of the DRC decision was not contested. The appeal is dismissed and the DRC decision of 3 June 2021 is confirmed in full. ¶¶ 128–131; operative part

Procedural history

1. 2 January 2020The club and the player signed the employment contract.
2. 17 April 2020The club sent its notice of the COVID-19 salary cut. The player denies receiving it.
3. 18 January 2021The club terminated the contract with immediate effect.
4. 1 February 2021The player filed a claim with the FIFA DRC.
5. 3 June 2021The FIFA DRC partially accepted the claim. Its grounds were notified on 21 June 2021.
6. 9 July 2021The club filed its statement of appeal with CAS.
7. 2 September 2021The Panel was constituted.
8. 10 January 2022Hearing held by video-conference.
9. 17 October 2022CAS award: appeal dismissed and the DRC decision confirmed.

Tribunal, counsel and experts

Decided by

• Manfred Nan President, CAS Panel — appointed by the institution
• Daniele Moro Co-arbitrator, CAS Panel — appointed by the claimant
• Ulrich Haas Co-arbitrator, CAS Panel — appointed by the respondent

For the claimant

Mohamed Khalied Allie

For the respondent

Salvatore Civale · Elena Raccagni

Run a conflict check on these names →

Keywords

• COVID-19
• FIFA COVID-19 Guidelines
• FIFA Circular 1714
• unilateral salary reduction
• force majeure
• proportionality
• burden of proof
• silence as acceptance
• termination without just cause
• FIFA DRC
• Saudi Pro League
• Saudi labour law
• equal treatment
• football employment contract
• FIFA RSTP
• Al Shabab

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