CAS Case Digest · Verified against the full award text

CAS 2021/A/8337 — Al Nassr Saudi Club v. Paulo Jorge Martins Mourao

"Al Nassr v. Mourao" · CAS partially upheld Al Nassr's appeal, reducing outstanding remuneration but confirming EUR 600,000 compensation for unjustified termination of assistant coach's contract.

Award date	28 February 2023
Panel	Sole Arbitrator: Mr Michele A.R. Bernasconi, Attorney-at-law in Zurich, Switzerland; Ad hoc Clerk: Mr Pierre Turrettini, Attorney-at-law in Geneva, Switzerland
Outcome	Appeal partially upheld: outstanding remuneration reduced from EUR 258,576 to EUR 206,364.65 (EUR 58,576 + EUR 100,000 + EUR 47,788.65, each with 5% p.a. interest from respective due dates); EUR 600,000 compensation for breach of contract confirmed with 5% p.a. interest from 28 January 2021; arbitration costs 80% borne by Al Nassr and 20% by the Coach; Al Nassr ordered to pay CHF 4,000 to the Coach as contribution to legal expenses.
Provisions	Art. 6 para. 2 Annex 8 FIFA RSTP (January 2021) — compensation for termination without just cause for coaches Art. 17 para. 1 FIFA RSTP — 'unless otherwise provided for in the contract' framework Art. 26 para. 1 and 2 FIFA RSTP (January 2021) — transitional provisions on applicable regulations Art. 2 Part VI Second Contract — residual value plus Swiss law mitigation on unjustified termination Art. 337c para. 1 SCO — employee's right to residual remuneration on unjustified dismissal Art. 337c para. 2 SCO — duty to mitigate damages Art. 337c para. 3 SCO — additional compensation up to six monthly salaries Art. 339 para. 1 SCO — all claims fall due upon termination of employment Art. 2 SCC — prohibition on abuse of rights Art. R47 CAS Code — jurisdiction for appeals Art. R58 CAS Code — applicable law Art. R64.4 and R64.5 CAS Code — costs Art. 56 para. 1 and 57 para. 1 and 2 FIFA Statutes — CAS jurisdiction and applicable law

What happened in Al Nassr v. Mourao

Paulo Jorge Martins Mourao, a Portuguese assistant football coach, was employed by Al Nassr Saudi Club under a contract from January 2019 and a second contract from September 2020 through May 2022. On 27 December 2020, following poor sporting results, the Club terminated the second contract. The Coach filed a claim before FIFA's Players' Status Committee (PSC), which awarded EUR 258,576 in outstanding remuneration and EUR 600,000 as compensation for breach of contract. Al Nassr appealed to CAS, arguing mutual termination, COVID-19-justified salary reductions, and the Coach's failure to mitigate damages by not joining FK Spartak Moscow. The Sole Arbitrator rejected the mutual termination argument, finding no written evidence of agreement and noting the Coach's lawyer had explicitly described a unilateral termination six days after the meeting. On outstanding remuneration, CAS recalculated on a pro rata basis, reducing the figure from EUR 258,576 to EUR 206,364.65. On compensation, the Sole Arbitrator found the residual value was actually EUR 652,211.35 but was bound by the non ultra petita principle to confirm EUR 600,000 since the Coach had not cross-appealed. The Club failed to prove the Coach intentionally avoided new employment. The case matters for its treatment of COVID-19 salary reduction arguments, the non ultra petita principle in CAS appeals, and the mitigation burden of proof under Article 337c SCO.

Procedural history of CAS 2021/A/8337

On 28 January 2021, the Coach filed a claim before the FIFA Players' Status Committee (PSC) seeking outstanding salaries and compensation for breach of contract. On 30 March 2021, Al Nassr filed its answer requesting full dismissal. On 27 July 2021, the Single Judge of the PSC issued the Appealed Decision awarding EUR 258,576 as outstanding remuneration (with 5% p.a. interest) and EUR 600,000 as compensation for breach of contract (with 5% p.a. interest from 28 January 2021), plus CHF 22,000 in procedural costs against the Club. FIFA notified the grounds on 1 September 2021. On 22 September 2021, Al Nassr filed its Statement of Appeal at CAS within the 21-day deadline under Article 57 para. 1 of the FIFA Statutes. The Coach did not file a cross-appeal. A consolidated hearing with related cases was held on 22 May 2022 in Lausanne.

Key holdings in CAS 2021/A/8337

The Club terminated the Second Contract without just cause on 27 December 2020, as there was no written termination agreement and the Coach's letter of 2 January 2021 explicitly described a unilateral termination.
COVID-19 did not justify a unilateral 50% salary reduction: the clausula rebus sic stantibus principle did not apply because the season was ultimately completed and the Coach performed his services; tacit acceptance of a salary cut was rejected because the Contract required written amendments.
Outstanding remuneration under the Second Contract must be calculated on a pro rata basis over 21 months (EUR 800,000 total), yielding a monthly rate of EUR 38,095.24, resulting in total outstanding remuneration of EUR 206,364.65 rather than the PSC's EUR 258,576.
The Club failed to discharge its burden of proving the Coach intentionally failed to mitigate damages; unproven allegations that the Coach joined FK Spartak Moscow, without documentary evidence of an offer or refusal, were insufficient to reduce compensation.
The non ultra petita principle prevented the Sole Arbitrator from awarding compensation exceeding EUR 600,000, even though the calculated residual value of the Second Contract was EUR 652,211.35, because the Coach had not appealed the PSC decision.

How the CAS panel reasoned

The Sole Arbitrator applied FIFA RSTP of January 2021 (as the claim was filed after 1 January 2021) and Swiss law subsidiarily. On mutual termination, he required written evidence per the Contract's amendment clause and found none; the Coach's 2 January 2021 letter was treated as contemporaneous proof of unilateral termination. On COVID-19 salary reduction, he rejected tacit acceptance because the Contract required written amendments, rejected clausula rebus sic stantibus because the season was completed, and found FIFA's COVID-19 guidelines non-binding. On outstanding remuneration, he declined to treat instalments as advance payments (noting the June instalment fell after season-end) and calculated pro rata over 21 months, treating the inter-season period as working time for a coach. On compensation, he applied Article 2 Part VI of the Second Contract, which incorporated Swiss law mitigation (Article 337c para. 2 SCO). He placed the burden of proving intentional failure to mitigate on the Club, which produced no evidence of an offer from FK Spartak Moscow or any refusal by the Coach. The Club's attempt to impute the Spartak contracts of other assistant coaches to the Coach was rejected as speculative. The non ultra petita principle capped the compensation at EUR 600,000. The Coach's Article 337c para. 3 SCO additional compensation claim was declared inadmissible as it was not raised before the PSC and no cross-appeal was filed.

Why Al Nassr v. Mourao matters in CAS jurisprudence

This award clarifies that FIFA's COVID-19 non-binding guidelines cannot justify unilateral salary reductions where the employment contract requires written amendments and the season was ultimately completed. It confirms that the non ultra petita principle strictly limits CAS from awarding more than the appealed decision even when the panel's own calculation yields a higher figure, and that the burden of proving intentional failure to mitigate lies with the employer, who cannot discharge it by mere inference from colleagues' contracts with a third club.

Decision: Appeal partially upheld: outstanding remuneration reduced from EUR 258,576 to EUR 206,364.65 (EUR 58,576 + EUR 100,000 + EUR 47,788.65, each with 5% p.a. interest from respective due dates); EUR 600,000 compensation for breach of contract confirmed with 5% p.a. interest from 28 January 2021; arbitration costs 80% borne by Al Nassr and 20% by the Coach; Al Nassr ordered to pay CHF 4,000 to the Coach as contribution to legal expenses.

Cases cited in this award

CAS 2016/A/4852 CAS 2016/A/4769 CAS 2016/A/4678 CAS 2016/A/4582 CAS 2018/A/6029 CAS 2014/A/3647&3648

Frequently asked questions about Al Nassr v. Mourao

Did Al Nassr successfully argue COVID-19 justified reducing the coach's salary in the Al Nassr v. Mourao CAS case?

No. The Sole Arbitrator rejected all three COVID-19 arguments: tacit acceptance of a 50% cut was dismissed because the Contract required written amendments; clausula rebus sic stantibus was inapplicable because the 2019-2020 season was ultimately completed and the Coach performed his services; and the Saudi Pro League decisions and FIFA COVID-19 guidelines were found non-binding and unproven as a mandatory regulatory framework.

How did CAS calculate the outstanding remuneration owed to the assistant coach in Al Nassr v. Mourao?

The Sole Arbitrator rejected the Club's 'advance payment' characterisation and calculated remuneration pro rata over 21 months (the full term of the Second Contract from September 2020 to May 2022), yielding a monthly rate of EUR 38,095.24. For 118 days worked (September through 27 December 2020), the outstanding amount under the Second Contract was EUR 147,788.65, and adding EUR 58,576 unpaid from the first contract produced a total of EUR 206,364.65, down from the PSC's EUR 258,576.

Why did CAS award only EUR 600,000 compensation in Al Nassr v. Mourao when the panel calculated the residual value at EUR 652,211.35?

The Sole Arbitrator was bound by the non ultra petita principle: because the Coach did not file a cross-appeal against the PSC's EUR 600,000 award, CAS could not increase the amount in his favour even though its own calculation of the residual value of the Second Contract (EUR 800,000 minus EUR 147,788.65 already due) came to EUR 652,211.35.

What did CAS decide about the duty to mitigate in Al Nassr v. Mourao, and did the coach's alleged employment with FK Spartak Moscow reduce the compensation?

The Sole Arbitrator confirmed that under Article 337c para. 2 SCO the burden of proving intentional failure to mitigate lies with the employer. Al Nassr produced no evidence that the Coach received or refused an offer from FK Spartak Moscow, and the attempt to impute the Spartak contracts of two other former assistant coaches to the Coach was rejected as speculative. Accordingly, no mitigation reduction was applied and the full EUR 600,000 compensation was confirmed.

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Topics: Art. 17 RSTP & contract termination at CAS

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