Labour Disputes
Texto da decisão
REF FPSD-5768
Decision of the
Dispute Resolution Chamber
passed on 8 June 2022
regarding an employment-related dispute concerning the player Yassin Sheikh
Al-Wali
BY:
Daan de Jong (the Netherlands)
CLAIMANT:
Yassin Sheikh Al-Wali, Mauritania
Represented by Mohammed Ammar Mohamed
RESPONDENT:
Union Sportive Tataouine, Tunisia
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REF FPSD-5768
I.
Facts of the case
1.
On 9 September 2021, the Mauritanian player, Yassin Sheikh Al-Wali (hereinafter: the
Claimant), and the Tunisian club, Union Sportive Tataouine (hereinafter: the Respondent)
signed an employment contract valid as from 24 August 2021 until 30 June 2023
(hereinafter: the Contract).
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia a yearly salary of TND 100,000 for the 2021-2022 sporting season, and
TND 105,000 for the 2022-2023 sporting season respectively.
3.
During a match played in the Tunisian Ligue 1 against Hammam Sousse on an unknown
date, the Claimant suffered an injury.
4.
The Claimant was subsequently called up to international duty with the National Team of
Mauritania, during the time of which the aforementioned injury was aggravated and, upon
a professional medical analysis, an official diagnosis of a cruciate ligament injury was
produced.
5.
The Claimant’s injury was originally treated by the Mauritanian Football Association, due
to how serious it was. Subsequently, the Claimant wished to accelerate his recovery, and
decided to treat the injury in a private Clinic in Qatar, at his own expense.
6.
On 28 February 2022, the Claimant and the Respondent (hereinafter jointly: the Parties)
signed a termination agreement (hereinafter: the Settlement Agreement), by way of which
the Parties mutually agreed to terminate the Contract signed on 9 September 2021.
7.
In accordance with Article 2 of the Settlement Agreement, the Claimant was entitled to
receive to the following amounts, in full and final settlement of the Parties’ Contract:
-
8.
TND 10,000 payable within 72 hours of signing the Settlement Agreement;
TND 10,000 payable within 21 days of signing the Settlement Agreement.
The Claimant sent a letter to the Respondent (date unclear), requesting payment of both
the hospital bills as well as the outstanding amount due under the Settlement Agreement,
to no avail.
II. Proceedings before FIFA
9.
On 14 April 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
10. According to the Claimant, the Respondent failed to comply with the Settlement
Agreement to which the Parties agreed on 28 February 2022, by not effectively paying the
due amounts within the contractually stipulated timeframe.
11. As a result, the Claimant argues, the Settlement Agreement is automatically invalid,
reverting both parties to be bound by the original Contract.
12. The Claimant, therefore, requests compensation in the amount of TND 165,000,
corresponding to the residual value of the Contract as from the purported date of
termination.
13. Furthermore, the Claimant has requested “additional compensation” in the amount of QAR
156,070 for the treatment expenses incurred as a result of the injury sustained during the
match against Hammam Sousse.
14. Lastly, the Claimant has claimed “additional compensation” for “psychological, moral and
material harm as a result of the (Respondent’s) neglect of him and failure to respect the
contractual provisions” in the amount of USD 50,000.
b. Position of the Respondent
15. The Respondent was invited to present its comments with regards to the claim lodged
against it on 14 April 2022 by the Claimant.
16. In this respect, the Respondent requested a deadline extension after the original deadline
for providing a response had already expired, which was consequently not granted by the
FIFA Administration.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 14 April 2022
and submitted for decision on 8 June 2022. Taking into account the wording of art. 34 of
the October 2021 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.
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18. Subsequently, the Single Judge 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 (March 2022 edition), he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Mauritanian player and a Tunisian club.
19. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (March 2022 edition),
and considering that the present claim was lodged on 14 April 2022, the March 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
20. The Single Judge 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, he stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
21. His competence and the applicable regulations having been established, the Single judge
entered into the merits of the dispute. In this respect, he started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Single Judge emphasised that in the following considerations, he will refer only to the
facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
i. Main legal discussion and considerations
22. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the Claimant strongly disputes the validity of the
Settlement Agreement, following the non-compliance thereof by the Respondent and is of
the opinion that the Contract is the only valid and binding document in force.
23. In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence presented by the Claimant, whether the Settlement Agreement was indeed
valid, and if so, whether the Respondent had a valid justification for not having complied
with its financial obligations as per the Settlement Agreement.
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24. In this respect, the Single Judge deemed it important to point out that the non-compliance
with a contractual document, such as the Settlement Agreement at hand, by one party,
does not automatically invalidate said document.
25. In view of the foregoing, the Single Judge rejected the argument presented by the Claimant
that the Parties are bound by the original Contract, and that the obligations under the
Settlement Agreement, by way of which the Parties mutually terminated the contractual
relationship, is automatically considered void.
26. Subsequently, the Single Judge noted that in the case at hand, the Respondent bore the
burden of proving that it indeed complied with the financial terms of the Contract concluded
between the Parties.
27. Nonetheless, the Single Judge noted that, as no reply was received from the Respondent
in this respect, it failed to prove the payment of the amounts claimed as outstanding by
the Claimant.
28. In view of the foregoing, and bearing in mind the basic legal principle of pacta sunt
servanda, which in essence means that agreements must be respected by the parties in
good faith, the Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the Contract concluded between the Parties, namely TND 20,000.
29. Furthermore, the Single Judge also took note of the Claimant’s argument that he was
entitled to receive reimbursement for treatment expenses incurred as a result of his
rehabilitation in a private clinic in Qatar, according to which he requested additional
compensation payable by the Respondent in the amount of QAR 156,070.
30. In view of the foregoing, the Single Judge deemed that it was necessary to first analyse
whether the Parties had contractually agreed whether or not the Respondent shall bear
the cost of any rehabilitation or medical expenses incurred by the Claimant for the duration
of the Parties’ contractual relationship.
31. In this respect, the Single Judge confirmed that there was no contractual basis upon which
the Claimant could rely on to request reimbursement of any such expenses from the
Respondent.
32. Moreover, the Single Judge also took note of the Claimant’s argument that he was entitled
to receive “additional compensation” for “psychological, moral and material harm as a
result of the (Respondent’s) neglect of him and failure to respect the contractual
provisions”, in the amount of USD 50,000.
In this respect, the Single Judge pointed out that the matter at hand does not concern a
breach of contract-case, but rather a matter regarding the non-compliance with a
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settlement agreement, and thus regarded this request for “additional compensation”, also
because for “psychological and moral damages” lacks a regulatory basis.
ii. Consequences
33. The Single Judge observed that the financial obligations deemed as outstanding in the
present case correspond to the two outstanding instalments of TND 10,000 each under
the Settlement Agreement.
34. As a consequence, and in accordance with the general principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
claimed as outstanding under the Contract, in total TND 20,000, as detailed above.
35. In addition, taking into consideration the lack of a request by the Claimant as well as the
constant practice of the Single Judge in this respect, the latter decided not to award any
interest on the amounts awarded to the Claimant.
iii. Art. 12bis of the Regulations
36. In continuation, the Single Judge referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
37. To this end, in accordance with art. 15 of the Procedural Rules, it was established ex officio
that the Claimant did not submit satisfying evidence proving that he put the Respondent
in default of payment of the amounts sought, which had fallen due more than 30 days
before, or that he granted the Respondent a 10-day deadline to cure such breach of
contract.
38. Accordingly, the Single Judge confirmed that the criteria enshrined in art. 12bis of the
Regulations were not met in the case at hand, and that he had no competence to impose
sanctions on the Respondent.
iv. Compliance with monetary decisions
39. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with his 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.
40. In this regard, the Single Judge 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
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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.
41. Therefore, bearing in mind the above, the Single Judge 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.
42. 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.
43. The Single Judge 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
44. The Single Judge 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 Single Judge decided that no procedural costs
were to be imposed on the parties.
45. Likewise and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
46. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Yassin Sheikh Al-Wali, is partially accepted.
2.
The Respondent, Union Sportive Tataouine, has to pay to the Claimant the following
amount:
-
▪
TND 20,000 as outstanding remuneration.
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 enclosed Bank Account Registration Form.
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 the ban
shall be of 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
article 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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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