Labour Disputes
Texto da decisão
REF. FPSD-9135
Decision of the
Dispute Resolution Chamber
passed on 12 April 2023
regarding an employment-related dispute concerning
the player Aso Rostam Mohammed Al Jaf
BY:
Clifford J. HENDEL (USA & France), Deputy Chairperson
André DOS SANTOS MEGALE (Brazil), member
Sihon GAUCI (Malta), member
CLAIMANT:
Aso Rostam Mohammed Al Jaf, Iraq
Represented by Mr Hamouda Bouazza
RESPONDENT:
Salmiya SC, Kuwait
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REF. FPSD-9135
I. Facts of the case
1. The player Aso Rostam Mohammed Al Jaf and Salmiya SC concluded an employment contract
valid as from 1 August 2022 until 30 June 2024.
2. Following art. 4 of the contract, the player was entitled to USD 450,000, to be paid as follows:
- Season 2022/2023: USD 250,000, with a first instalment of USD 50,000 due on 1 August
2022 and 10 instalments of USD 20,000 each, from September 2022 until June 2023.
- Season 2023/2024: USD 200,000, to be paid in 12 instalments of USD 16,667 each payable
from “July” 2023 until July 2024.
3. On 20 December 2022, the player sent a default notice.
4. On 10 January 2023, the player (via his legal representative) sent a new default notice,
indicating that the amount of USD 80,000 and corresponding to the salaries of September,
December, November and December 2022 are outstanding, and referred to art. 14 of the
Regulations.
5. On 26 January 2023, the player sent a termination letter, referring to his previous notices and
insisting that he did not receive his salaries from September until December 2022. The
termination letter apparently attached the same power of attorney, dated 6 January 2023,
that was submitted within the context of this matter).
6. On 1 February 2023, the player concluded an employment contract with the Iraqi club, Al
Shorta SC, valid as from 1 February 2023 until 10 July 2024.
7. Accordingly, the player was entitled to a total remuneration of IQD (Iraqi Dinars) 225,000,000,
equivalent to approx. USD 154,000.
II. Proceedings before FIFA
8. On 2 February 2023, the player lodged a claim before FIFA for breach of contract without just
cause and requested the payment of the following amounts:
Outstanding remuneration:
USD 80,000, corresponding to the salaries from September 2022 until December 2022 (i.e.
20,000*4), plus 5% interest p.a. as from the due dates.
Compensation:
USD 400,000, plus 5% interest p.a. as from 26 January 2023 and corresponding to the alleged
residual value of the contract.
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REF. FPSD-9135
9. In its reply, the Respondent contested the validity of the default notices sent by the player
since “it did not include a way for the player to hand over his overdue dues, especially since the
player was joining his country's national team during that period.”
10. The club stated the player was asked to send his bank details several times, but did not reply
to said request. The club further added that it paid the first amount (15,000 Kuwaiti Dinars)
in cash.
11. In addition, the Respondent explained that it “did not receive any warnings regarding the
player's intention to leave the club due to the payment of overdue dues during the month of
December 2022.”
12. The club requested to decided that the player terminated the contract “for an unfair reason”.
13. In his replica, the Claimant insisted in the validity of his default notice.
14. As to the provision of the bank details, the Claimant explained that he provided the same
Bank Account Registration Form that he provided his claim before FIFA.
15. Besides, the Claimant explained that the club only provided him with a tourist visa and that
he ultimately did not obtain his work permit. The Claimant stated that, under any
circumstance, the validity of the contract cannot be subject to the obtention of a valid permit.
16. In its duplica, the Respondent insisted that it could not pay the player as it did not have its
bank account.
17. As to the default notices, the Respondent stated that it “does not respond to any personal
emails that are not from an approved party requesting any clarifications or following any
procedures relate to sums of money or others without officially approving the contacts with the
club management.”
18. The Respondent provided a document by means of which the player acknowledged that he
received KWD 14,000 on 28 July 2022.
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REF. FPSD-9135
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 2 February 2023 and submitted
for decision on 12 April 2023. Taking into account the wording of art. 34 of the October
2022 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.
2.
Subsequently, the members of the Chamber 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 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from Iraq
and a club from Kuwait.
3.
Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition), and
considering that the present claim was lodged on 2 February 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
5.
Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
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REF. FPSD-9135
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter.
7.
In particular, the Chamber noted that the parties concluded a contract valid as from 1
August 2022 until 30 June 2024 and that, on 26 January 2023, the player unilaterally
terminated the contract after having put the club in default for the non payment of his
salaries since September 2022.
8.
On the other hand, the Chamber took note of the position of the Respondent, which
fundamentally contested the validity of the default notice. The club acknowledged that it
received the default notices, but that it “does not respond to any personal emails that are not
from an approved party requesting any clarifications”.
9.
In relation to this last argument, the Chamber analysed the documentation on file, and
observed that that the player’s legal representative duly submitted a power of attorney,
and therefore the club’s argument cannot be followed.
10. In addition, the club acknowledged its default, but argued that it did not have the player’s
bank account. In this respect, it should be noted that, despite this, the club paid the first
instalment (albeit in cash). In addition, the Chamber also that the player’s bank account
was apparently provided with the default notices. In the view of the Chamber, the club
should have also inquired about this information after receiving the default notice. As a
result, the club’s argument must be rejected.
11. In sum, the Chamber understood that the club had no valid reason to not remunerate the
player since September 2022.
12. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligations.
13. The Chamber noted that the Claimant claims not having received his remuneration since
September 2022. Furthermore, the Chamber / Single Judge noted that the Claimant has
provided written evidence of having put the Respondent in default on 20 December 2022
and then on 10 January 2023, i.e. at least 15 days before unilaterally terminating the
contract on 26 January 2023.
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REF. FPSD-9135
ii. Consequences
14. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
15. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to his salaries from
September 2022 until January 2023, salaries under the contract, amounting to USD 100,000
(i.e. USD 20,000*5).
16. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e. USD
100,000.
17. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the due dates until the date of effective
payment.
18. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
19. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
20. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
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REF. FPSD-9135
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
21. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date.
22. In particular, the Chamber noted that, between the months of February and June in the
year 2023, the player shall to receive a sum of USD 100,000 (i.e. USD 20,000*5) and that,
during the season of 2023-2024, the aforementioned player shall receive a total of USD
200,000. Therefore, the total residual value of the contract between the parties amounts
to USD 300,000 (i.e. USD 100,000 + USD 200,000).
23. Consequently, the Chamber concluded that the amount of USD 300,000 serves as the basis
for the determination of the amount of compensation for breach of contract.
24. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
25. Indeed, the player found employment with the Iraqi club, Al Shorta SC, for the period
comprised between 1 February 2023 until 10 July 2024. In accordance with the pertinent
employment contract, the player was entitled to approximately to a total remuneration of
IQD (Iraqi Dinars) 225,000,000, equivalent to approx. USD 154,000. The Chamber estimated
that, during the overlapping period until 30 June 2024, that the player would have earned
approx. USD 153,072.
26. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
27. In this respect, the DRC decided to award the amount of additional compensation of USD
60,000, i.e. three times the monthly remuneration of the player (20,000*3)
28. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 206,928 to the player (i.e. USD 300,000 minus USD 153,072 plus USD 60,000), which
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REF. FPSD-9135
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
29. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of the termination of the contract until
the date of effective payment.
iii. Compliance with monetary decisions
30. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
31. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
32. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
33. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
34. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
35. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
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REF. FPSD-9135
36. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
37. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-9135
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Aso Rostam Mohammed Al Jaf, is partially accepted.
2.
The Respondent, Salmiya SC, must pay to the Claimant the following amounts:
- USD 100,000 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount USD 20,000 of as from 1 October 2022 until the date of effective payment;
- 5% interest p.a. over the amount USD 20,000 of as from 1 November 2022 until the date of effective payment;
- 5% interest p.a. over the amount USD 20,000 of as from 1 December 2022 until the date of effective payment;
- 5% interest p.a. over the amount USD 20,000 of as from 1 January 2023 until the date of effective payment;
- 5% interest p.a. over the amount USD 20,000 of as from 1 February 2023 until the date of effective payment;
- USD 206,928 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 26 January 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the Bank Account Registration Form, which is attached to the present decision.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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
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