Labour Disputes
Texto da decisão
REF. FPSD-8806
Decision of the
Dispute Resolution Chamber
passed on 20 April 2023
regarding an employment-related dispute concerning
the player Mohamed Aziz Ben Mohamed
BY:
Omar Ongaro (Italy), Deputy Chairperson
José Luis Andrade (Portugal), member
Peter Lukasek (Slovakia), member
CLAIMANT:
Mohamed Aziz Ben Mohamed, Tunisia
Represented by Mr Slim Boulasnem
RESPONDENT:
Al Sadaqa Shahat SC, Libya
pg. 2
REF. FPSD-8806
I. Facts of the case
1.
On 16 September 2022, the Tunisian player Mohamed Aziz Ben Mohammed (hereinafter:
Claimant or player) and the Libyan Club Al Sadaqa Shahat SC (hereinafter: club or
Respondent) concluded an employment contract (hereinafter: the Contract) valid as from the
date of signature until the end of the season 2023/2024 (cf. TMS: 30 June 2024).
2.
According to the Contract, the Respondent undertook to pay the Claimant a total
remuneration of USD 85,000, payable in instalments as follows:
-
USD 20,000 following the medical examination (i.e. the day the Contract was signed);
USD 10,000 in the first half of the season 2022/2023;
USD 10,000 at the end of the season 2022/2023;
USD 25,000 at the beginning of the season 2023/2024;
USD 10,000 in the first half of the season 2023/2024;
USD 10,000 at the end of the season 2023/2024.
3.
On 17 November 2022, the Claimant put the Respondent in default and requested payment
of USD 20,000, corresponding to the payment due following the medical examination – i.e.
at the beginning of the Contract, and granted a deadline of 15 days for the Respondent to
remedy the alleged breach.
4.
On 6 December 2022, the Claimant unilaterally terminated the Contract.
5.
On 3 January 2023, the Claimant signed a contract with Tunisian club Olympique Beja
(hereinafter: the New Club) valid as from the date of signature until 30 June 2023
(hereinafter: the New Contract).
6.
In accordance with the New Contract, the Claimant was entitled to receive TND 800 as a
monthly salary.
II. Proceedings before FIFA
7.
On 6 January 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
8.
In his claim, the Claimant argued that he was not paid the first salary instalment of
USD 20,000, which became payable after the medical examination – i.e. the day the
Contract had been concluded – despite granting the Respondent a deadline of 15 days to
remedy the alleged breach.
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REF. FPSD-8806
9.
The Claimant thus argued that the requirements of art. 14bis of the Regulations were
satisfied, and that he had just cause to terminate the Contract.
10. The Claimant thus requested outstanding remuneration of USD 20,000, as well as
compensation in the amount of USD 65,000 – corresponding to the Contract’s residual
value.
11. The Claimant also requested annual interest of 5%, as from 17 September 2022 on the
outstanding remuneration and as from 6 December 2022 on the compensation until the
date of effective payment.
12. Lastly, the Claimant argued, the Respondent argued that the Claimant should be entitled
to receive EUR 5,860 as “supplementary compensation” based on the fact that the Contract
stipulated for the Respondent to provide accommodation, and the average cost of an
apartment in the city of the Respondent would, for the residual term of the Contract, have
cost EUR 5,860.
b. Position of the Respondent
13. In its reply, the Respondent alleged that the Claimant had not concluded a “full
examination”, and that he was not entitled to receive the USD 20,000 that would become
payable after such examination.
14. The Respondent further asserted that the Claimant had “secretly left” Libya without giving
notice of his departure, in clear violation of the Contract.
15. The Respondent also outlined that the Claimant was lodged in a hotel with other
teammates, and that his request for reimbursement of any accommodation fees should
be rejected.
16. The Respondent lastly argued that it was suffering financial difficulties following the
Claimant’s signature of the Contract and negotiated in good faith with him to delay the
payment of the “financial dues”, but received no reply by either him or his agent.
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REF. FPSD-8806
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 and submitted for decision on
20 April 2023. 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.
18. 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 (March 2023 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
Tunisia and a club from Libya.
19. 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 (March 2023 edition), and
considering that the present claim was lodged on 6 January 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
20. 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
21. 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
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.
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REF. FPSD-8806
i. Main legal discussion and considerations
22. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the payment of certain
amounts stipulated under the Contract, as well as the lawfulness of the contractual
termination.
23. In this context, the Chamber acknowledged that its task was to determine whether based
on the submissions of the parties and the documentation on file, the claimed outstanding
amounts had indeed and justifiably been defaulted upon, and subsequently whether the
Contract was terminated with or without just cause.
24. On one hand, the Chamber noted that the Claimant asserted having terminated the
Contract with just cause due to overdue payables. More specifically, the Claimant argued
not having received USD 20,000, corresponding to the remuneration instalment which
became due following the medical examination. The Chamber also pointed to the fact that
the Claimant had put the Respondent in default of said amount and granted a deadline of
15 days to remedy the alleged breach.
25. Conversely, the Chamber observed that the Respondent had denied that said amount had
become due, given that the Claimant had allegedly not completed a “full examination”,
thereby not entitling him to receive any salaries. At the same time, however, the
Respondent acknowledged that it had been suffering from financial difficulties and that it
had attempted to amicably settle the matter with the Claimant prior to his departure.
26. Before entering the analysis of the parties’ submissions, the Chamber 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 obligation(s).
27. Considering the wording of art. 14bis par. 2 of the Regulations and the fact that the
Claimant’s salary was not due on a monthly basis, the Chamber calculated the pro-rata
value of the remuneration and concluded that the amount of USD 20,000 claimed
corresponded to approximately five monthly salaries.
28. The Chamber 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. Nonetheless, the argumentation provided by the Respondent (namely that the
Claimant had not undergone a “full medical examination”) could not be accepted as a valid
justification for defaulting on the said amounts.
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REF. FPSD-8806
29. In particular, in concluding the above, the Chamber referred to art. 13 par. 5 of the
Procedural Rules, and established that the Respondent had failed to demonstrate that the
Claimant had not undergone a “full” examination – particularly since it remained
undisputed that the Contract had been given effect to – as well as art. 18 par. 5 of the
Regulations, in accordance with which, in any event, the validity and performance of a
contract may not be made subject to the passing of a medical examination. Lastly, the
Chamber wished to equally point to the fact that the Claimant’s default notice remained
unanswered by the Respondent.
30. Based on the above, the Chamber concluded that the requirements of art. 14bis had been
satisfied, and that, by way of consequence, the Claimant had just cause to terminate the
Contract on 6 December 2022.
ii. Consequences
31. 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.
32. 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 approximately
five salaries under the contract, amounting to USD 20,000.
33. 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 20,000.
34. 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 17 September 2022 until the date of
effective payment.
35. 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.
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REF. FPSD-8806
36. 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.
37. 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
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
38. 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. In this respect, the Chamber
rejected the line of argument that the cost of living should be taken into consideration
given that the Respondent had submitted a copy of the hotel contract at which the Claimant
had been lodged paid by itself and it could not be established that the Claimant would have
incurred such costs over the course of the Contract.
39. Consequently, the Chamber concluded that the amount of USD 65,000 (i.e. the residual
value of the Contract) serves as the basis for the determination of the amount of
compensation for breach of contract.
40. 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.
41. Indeed, the player found employment with the New Club. In accordance with the New
Contract, the player was entitled to approximately TND 800 per month. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of
TND 4,800, that is, six times TND 800, or approximately USD 1,500.
42. 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.
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REF. FPSD-8806
43. In this respect, the DRC established that the amount of additional compensation to which
the Claimant is entitled corresponds to USD 11,500 i.e. approximately three times the
monthly remuneration of the player. By the same token, the Chamber pointed towards the
fact that the total compensation payable to the Claimant may not exceed the residual value
of the Contract. The additional compensation awarded to the Claimant by the Chamber
was, hence, limited to USD 1,500 – i.e. the mitigated amount.
44. 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 65,000 to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
45. 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 6 December 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
46. 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.
47. 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.
48. 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.
49. 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.
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REF. FPSD-8806
50. 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
51. 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.
52. 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.
53. 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-8806
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mohamed Aziz Ben Mohamed, is partially accepted.
2.
The Respondent, Al Sadaqa Shahat SC, must pay to the Claimant the following amount(s):
- USD 20,000 as outstanding remuneration plus 5% interest p.a. as from
17 September 2022 until the date of effective payment;
- USD 65,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 6 December 2022 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
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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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pg. 12