Labour Disputes
Texto da decisão
REF. FPSD-13386
Decision of the
Dispute Resolution Chamber
passed on 19 June 2024
regarding an employment-related dispute concerning
the player Ali Babaei
BY:
Frans DE WEGER (The Netherlands), Chairperson
Khadija TIMERA (Senegal), member
Laurel VAURASI (Fiji), member
CLAIMANT:
Ali Babaei, IR Iran
Represented by Rreze Shkodra
RESPONDENT:
KF FERIZAJ, Kosovo
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REF. FPSD-13386
I. Facts of the case
1.
On 10 August 2023, the Iranian player, Ali Babaei (hereinafter: Claimant or player) and the
Kosovar, KF FERIZAJ (hereinafter: club or Respondent) concluded an employment contract
(hereinafter: contract) valid as from 10 August 2023 until 30 June 2025.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of EUR 700.
3.
On 18 November 2023, according to the Respondent, the parties concluded the following
termination agreement, which is contested by the player:
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REF. FPSD-13386
4.
On 19 November 2023, the club sent an email to the player’s agent that it was informed by
the authorities that the player’s VISA expired and that he has to leave the country. In said
email the club referred to the contract termination agreed by the parties “yesterday” during
a meeting.
5.
The player confirmed that he remained unemployed until today.
II. Proceedings before FIFA
6.
On 18 January 2024, 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
7.
In his claim, the Claimant requested payment of the total amount of EUR 15,400 as
compensation for breach of contract plus 5% interest p.a.
8.
Furthermore, the player requested payment of EUR 500 as legal costs.
9.
In this framework, the player argued that the club terminated the contract without just
cause by sending him a termination agreement dated 11 January 2024.
10. According to the player, the club only remitted a total amount of EUR 600 as salaries, as
follows:
- EUR 200 on 18 September 2023;
- EUR 400 on 18 October 2023.
11. Moreover, the player held that he only had a tourist VISA and that the club failed to apply
for a work VISA.
12. Subsequently, the club “removed the player from the apartment and took the keys, locking his
personal things inside and told him to leave the country as his tourist visa expired”.
b. Position of the Respondent
13. In its reply, the Respondent rejected the claim.
14. According to the club, the parties mutually terminated their contractual relationship on 18
November 2023 since the player did not get a VISA, by signing a termination agreement (cf.
point 3 above).
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REF. FPSD-13386
15. Furthermore, the club submitted receipts for the salary payments in the total amount of
EUR 1,400 to the player, as follows:
- EUR 300 on 18 August 2023;
- EUR 200 on 8 September 2023;
- EUR 200 on 19 September 2023;
- EUR 300 on 8 October 2023;
- EUR 400 on 18 October 2023.
c. Replica of the Claimant
16. In his replica, the Claimant reiterated his position.
17. He denied having signed a termination agreement and maintained that the document is
“forged”.
18. The player held that he initiated criminal proceedings regarding the forgery.
19. Moreover, the player pointed out that the club offered him another termination agreement
in January 2024 and therefore the parties did not part ways earlier.
d. Duplica of the Respondent
20. In its duplica, the Respondent reiterated its position and rejected that it forged the mutual
termination agreement.
21. According to the club it informed the player that the VISA expired and that the contract
cannot be fulfilled.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 18 January 2024 and submitted
for decision on 19 June 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.
23. 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 June 2024 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 and a club.
24. 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 (June 2024 edition) and
considering that the present claim was lodged on 18 January 2024, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. 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
26. 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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i. Main legal discussion and considerations
27. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the matter at hand concerns a claim of a player
against a club for breach of contract.
28. In this context, the Chamber acknowledged that it its task was to decide if the club
terminated the contract without just cause, and if so, to decide on the consequences
thereof.
29. The DRC noted that according to the Claimant, the club terminated the contract without
just cause. He denied having signed a mutual termination and he alleged that the club
failed to obtain a VISA for him.
30. On the other side, the members of the Chamber acknowledged the Respondent’s
argumentation according the mutual termination agreement is valid since the parties
concluded it with their free will. The club also held that it had no choice than to terminate
the contract since the player did not get a VISA.
31. On account of the above, the DRC analysed the content of the alleged termination
agreement and concluded that it is unbalanced since the player does not get anything in
return for the early termination of the contract. Further, the Chamber noted that according
to the jurisprudence of the Chamber it is the club’s duty to organise the work permit for
the player and it does not constitute a reason for just cause to terminate a contract if such
VISA application does not work out.
32. On account of the above, the DRC concluded that the alleged termination agreement shall
not be taken into account and that the club therefore had no just cause to terminate the
contract.
ii. Consequences
33. 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.
34. The Chamber observed that the player did not contest the alleged payments of the club in
the total amount of EUR 1,400 (cf. point 15 above), corresponding to the salaries of August
and September 2023. Therefore, the DRC outstanding remuneration at the time of
termination, coupled with the specific requests for relief of the player, are equivalent to
one monthly salary (October 2023) under the contract, amounting to EUR 700.
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35. 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. EUR 700.
36. 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 1 November 2023 until the date of effective
payment.
37. 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.
38. 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.
39. 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.
40. 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. Consequently, the Chamber
concluded that the amount of EUR 14,000 (20x EUR 700, November 2023 until June 2025)
serves as the basis for the determination of the amount of compensation for breach of
contract.
41. 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
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REF. FPSD-13386
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.
42. The player did not find new employment and was therefore not able to mitigate his
damages.
43. 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 EUR 14,000 to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
44. 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 19 November 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
45. 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.
46. 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.
47. 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.
48. 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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49. 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
50. 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.
51. 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.
52. 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-13386
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ali Babaei, is partially accepted.
2.
The Respondent, KF FERIZAJ, must pay to the Claimant the following amount(s):
- EUR 700 as outstanding remuneration plus 5% interest p.a. as from 1 November 2023
until the date of effective payment;
- EUR 14,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 19 November 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
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REF. FPSD-13386
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
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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