Labour Disputes
Texto da decisão
REF. FPSD-14960
Decision of the
Dispute Resolution Chamber
passed on 2 October 2024
regarding an employment-related dispute concerning the player
Patrick Arthur
BY:
Calum BEATTIE (Scotland)
CLAIMANT:
Patrick Arthur, Ghana
Represented by Basri Yilmaz
RESPONDENT:
Etehad Alreef SC, Bahrain
pg. 2
REF. FPSD-14960
I. Facts of the case
1.
On 16 August 2023, the Ghanaian player Patrick Arthur (hereinafter: the Claimant or the
Player) and the Bahraini club Etehad Alreef SC (hereinafter: the Respondent or the Club)
concluded an employment contract (hereinafter: the Contract) valid as from 25 August 2023
until 30 April 2024.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant a
monthly salary of USD 500.
3.
In addition, article 7 of the Contract read as follows:
“1. The contract expires at the expiry of its term, or by agreement of the parties under the parties’
discretion in financial, administrative and technical matters.
2. Either party has the right to terminate the contract in the event of a legitimate reason or fair
sporting subject to the regulations of BFA and FIFA.
3. The foregoing is without prejudice to all other rights derived from the second party under this
contract.
4. In case, any [sic] wishes to cancel the settled contract during its validity, the party wishing to
end the contract is obliged to pay an amount of ($1890/BD5000) as a penalty condition to the
other party.
5. if [sic] any clause of this contract is violate [sic] the FIFA and BFA regulations, this clause will
be declared null and the contract shall be valid.”
4.
Lastly, article 8 of the Contract stipulated the following:
“The contract is not considered valid unless the second party passes the medical examination
and performance examinations prescribed by the technical staff of the team.”
5.
On 17 September 2023, the Player passed the mandatory medical examination.
6.
On 20 September 2023, the Player received his residence permit for Bahrain, valid until 20
September 2024.
7.
On 21 October 2023, the Respondent allegedly notified the Player in person, by showing
him a document in Arabic, that he had to leave the country due to a deportation order
issued by the Immigration Department of Bahrain.
8.
On 10 November 2023, the Claimant left Bahrain.
pg. 3
REF. FPSD-14960
9.
By correspondence dated 3 June 2024, the Claimant put the Respondent in default of
payment of outstanding remuneration amounting to USD 3,000, compensation totalling
USD 3,000 for the termination of the Contract without just cause and additional
compensation of USD 1,500.
II. Proceedings before FIFA
10. On 16 June 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
11. According to the Claimant, it was notified by the Respondent of an alleged deportation
order issued by the Immigration Department of Bahrain, which is allegedly based on a
failed medical examination. In this regard, the Claimant noted that the deportation order
was in Arabic, a language it does not speak, understand or can read.
12. In this context, the Claimant argued that pursuant to art. 18 par. 4 of the Regulations on
the Status and Transfer of Players (hereinafter: the Regulations) and the jurisprudence of
FIFA and CAS, a failed medical examination has no influence on the validity of the Contract
and therefore gives the Club no right to terminate the Contract with just cause.
13. In addition, the Player argued that a new medical examination after he successfully passed
one cannot be considered as a just cause to terminate the Contract.
14. Considering the foregoing, the requests for relief of the Claimant were the following:
“1. The determination that the respondent has to pay the amount of 3.000 Dollar plus default
interest of 5% to the claimant based on the violation of article 12bis of the FIFA RSTP.
2. The determination that the legal requirements in accordance with article 17 of the FIFA
RSTP are given in this claim, in particular that the respondent terminated the contract with the
claimant without just cause, thus a breach of contract in accordance with the requirements
of article 17 of the FIFA RSTP.
3. The determination that the respondent has to pay the claimant a compensation equal to the
residual value of the contract that was prematurely terminated (the “Mitigated
Compensation”) in the amount of 3.000 US-Dollar plus an amount corresponding to three
monthly salaries (the “Additional Compensation”) in the amount of 1.500 US-Dollar.”
b. Position of the Respondent
15. The Respondent failed to provide its position on the claim.
pg. 4
REF. FPSD-14960
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the Single Judge)
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 16 June 2024 and submitted for
decision on 2 October 2024. Taking into account the wording of art. 34 of the March 2023
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.
17. Furthermore, 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 par. 1 lit. b) of the
Regulations (June 2024 edition), the Single Judge is competent to deal with the matter at
stake, which concerns an employment-related dispute with an international dimension
between a player from Ghana and a club from the Bahrain.
18. 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 (June 2024 edition), and
considering that the present claim was lodged on 16 June 2024, the June 2024 edition of
said regulations is applicable to the matter at hand as to the substance.
b. Burden of proof
19. 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, the Single Judge
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
20. Having established the competence and the applicable regulations, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge 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 it will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
pg. 5
REF. FPSD-14960
i. Main legal discussion and considerations
21. The Single Judge then moved to the substance of the dispute, and took note of the fact that
the matter at hand concerns a claim of the Player against the Club for breach of the
Contract.
22. In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence presented by the parties, if a valid employment contract was concluded
between the parties and, if so, to determine whether, as alleged by the Player, such
contract was breached by the Club without just cause on 21 October 2023 due to the
Player’s failed medical examination.
23. The Single Judge then recalled that the Respondent failed to reply to the claim. Hence, the
Single Judge’s decision shall be based on the facts and evidence established in the file.
24. Based on the evidence presented by the Claimant and in the absence of evidence to the
contrary, the Single Judge determined that a valid and binding employment contract had
been concluded between the parties. In addition, the Single Judge concluded that the
Contract had been terminated on 21 October 2023, the day the Respondent appeared to
have notified the Claimant of the deportation order issued by the Immigration Department
of Bahrain.
25. In this context, the Single Judge first referred to the clear and explicit wording of art. 18 par.
4 of the Regulations, according to which the validity of an employment contract cannot be
made subject to a successful medical examination and/or the grant of a work permit.
26. Secondly, the Single Judge recalled the content of art. 14 of the Regulations, which provides
that “a contract may be terminated by either party without consequences of any kind (either
payment of compensation or imposition of sporting sanctions) where there is just cause”. In this
respect, the Single Judge highlighted that the definition of just cause and whether just
cause exists shall be established in accordance with the merits of each particular case.
27. In continuation, the Single Judge also recalled the longstanding and well-established
jurisprudence of the Football Tribunal, which establishes that only a breach or misconduct
which is of a certain severity justifies the termination of a contract, i.e., only when there are
objective criteria which do not reasonably permit to expect a continuation of the
employment relationship between the parties, a contract may be terminated prematurely.
Hence, the Single Judge underlined that, if there are more lenient measures which can be
taken in order for an employer to ensure the employee’s fulfilment of his contractual
duties, and vice versa, such measures must be taken before terminating an employment
contract. In this framework, the Single Judge concluded that a premature termination of an
employment contract can only ever be an ultima ratio measure.
pg. 6
REF. FPSD-14960
28. Based on the foregoing and the fact that the claim remained uncontested by the
Respondent, the Single Judge concluded that the Respondent terminated the Contract
without just cause, as the Player’s medical condition does not give the Club just cause to
terminate the Contract. Therefore, the Single Judge decided that the Respondent is to be
held liable for the consequences below.
ii. Consequences
29. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of the Contract committed by the Respondent.
30. The Single Judge observed that there was no outstanding remuneration owed to the Player
at the time of termination of the Contract.
31. Having stated the above, the Single Judge 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 Single
Judge 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.
32. In application of the relevant provision, the Single Judge 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 Single Judge took
note of the wording of article 7.4 of the Contract, which established the following:
“In case, any [sic] wishes to cancel the settled contract during its validity, the party wishing to
end the contract is obliged to pay an amount of ($1890/BD5000) as a penalty condition to the
other party.”
33. After analysing the content of the aforementioned article, the Single Judge concluded that
it did not fulfil the criteria of proportionality, in line with the longstanding jurisprudence of
the Dispute Resolution Chamber, and therefore could not be taken into account for
establishing the amount of compensation payable to the Claimant. In particular, the Single
Judge noted that even though article 7.4 of the Contract is reciprocal as it triggers the same
consequences for either party, it is not proportionate considering the residual value of the
Contract and the principle of contractual stability.
pg. 7
REF. FPSD-14960
34. In addition, the Single Judge considered that, although the Player had agreed to the
liquidated damages clause, and there was no proof that he was subject to any undue
pressure to sign the Contract, article 7.4 involved a structure that disproportionately
favoured the Club and gave it an easy way of terminating the Contract at any moment.
Therefore, the Single Judge concluded that there was not a balance of bargaining power
between the parties and article 7.4 of the Contract should be considered null and void.
35. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
36. Bearing in mind the foregoing as well as the claim of the Player, the Single Judge 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. Consequently, the Single Judge
concluded that the amount of USD 3,000 (i.e., the monthly salaries from November 2023
to April 2024) serves as the basis for the determination of the amount of compensation for
breach of the Contract.
37. In continuation, the Single Judge 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.
38. In this respect, the Player confirmed that he had remained unemployed since the unilateral
termination of the Contract and, therefore, no mitigation applied.
39. Subsequently, the Single Judge 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 and in case there was mitigation. Since the foregoing
circumstances were not met in this case, the Single Judge decided that the Player is not
entitled to receive additional compensation.
40. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Club must pay the
amount of USD 3,000 to the Player, which was to be considered a reasonable and justified
amount of compensation for breach of the Contract in the present matter.
pg. 8
REF. FPSD-14960
41. Lastly, taking into consideration the player’s request as well as the constant practice of the
DRC in this regard, the Single Judge decided to award the player interest on said
compensation at the rate of 5% p.a. as of 21 October 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
42. 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 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.
43. 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
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.
44. 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.
45. 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.
46. 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
47. 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.
pg. 9
REF. FPSD-14960
48. 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.
49. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 10
REF. FPSD-14960
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Patrick Arthur, is partially accepted.
2.
The Respondent, Etehad Alreef SC, must pay to the Claimant the following amount:
- USD 3,000 as compensation for breach of contract plus 5% interest p.a. as from 21
October 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 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 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
pg. 11
REF. FPSD-14960
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:
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12