Labour Disputes
Texto da decisão
REF. FPSD-14026
Decision of the
Dispute Resolution Chamber
passed on 26 June 2024
regarding an employment-related dispute concerning
the player Bilel Ben Brahim
BY:
Tomislav KASALO (Croatia)
CLAIMANT:
Bilel Ben Brahim, Tunisia
RESPONDENT:
Shabab Al Jabal, Libya
pg. 2
REF. FPSD-14026
I. Facts of the case
1. On 28 October 2023, the player and SHABAB AL JABAL concluded an employment contract.
2. Accordingly, the player was entitled to USD 18,000 in total, payable as follows:
50% as an advance;
The rest as monthly salaries until the end of the season.
3. On 5 February 2024, the player sent a default notice and requested the payment of the total
amount of USD 12,000, corresponding to the signing fees 9,000 USD, the salary of November
2023, the Salary of December 2023 and the salary of January 2024, and granted 10 days to
remedy the default. The player also stated that the club is illegally withholding his passport
and granted 72 to have it returned.
4. On 20 February 2024, the club informed the player that the passports have been returned and
that the payment will be performed as from the return to training the day after.
5. On 23 February 2024, the player terminated the contract and referred to arts. 14 and 14bis of
the Regulations.
6. The player informed that he remained unemployed.
II. Proceedings before FIFA
7. On 12 March 2024, the player lodged a claim before the FIFA Football Tribunal for
outstanding salaries and breach of contract without just cause and requested the following,
plus interest:
USD 13,000 as outstanding salary (USD 9,000 as advance payment and salaries from
November 2023 until February 2024, i.e. USD 1,000*4)
USD 5,000 as residual value of the contract (i.e. March 2024 to July 2024 salary, USD
1,000*5).
USD 24,000 as compensation for the club's breaches of contract
8. The player explained that the club failed to pay his salary, confiscated his passport and to
provide adequate living and working conditions.
9. In its reply, the club argued that the player is considered a local player as per the Libyan
Football Association Resolution No. 59 for the year 2021, which treats foreign players
holding the nationality of a North African country as local players (note: document on file)
10. The club argued that the contract between the club and the player is an internal work
contract and not a professional player contract, and it is submitted to the Libyan authorities
for visa and residency procedures.
11. The club stated that USD 3,000 was paid on 16 December 2023, which covered the
November and December salaries.
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REF. FPSD-14026
12. The club stated that the player left the country without informing the club, and the club had
the player's passport with them as per the requirement of the Libyan authorities.
13. In his replica, the Claimant insisted that the contract was of a professional nature.
14. The Claimant further noted that no evidence was presented as to the alleged payments
performed by the club.
15. Regarding the question of the jurisdiction of the Libyan federation, the player argued that
no evidence is provided by the club to support such an interpretation.
16. In its duplica, the Respondent insisted in its previous views.
pg. 4
REF. FPSD-14026
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as 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 12 March 2024 and
submitted for decision on 26 June 2024. Taking into account the wording of art. 34 of the
May 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.
2.
Subsequently, the 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 (May 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 Tunisian player and a Libyan club.
3.
Subsequently, the Judge 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, and considering that the
present claim was lodged on 12 March 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
4.
The 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 Judge 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.
His competence and the applicable regulations having been established, the Judge entered
into the merits of the dispute. In this respect, the Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Judge emphasised that in the following considerations he will refer only to the facts,
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REF. FPSD-14026
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 Judge moved to the substance of the matter,
and took note of the fact that this is a claim for breach of contract without just cause due
to outstanding salaries. In particular, the player terminated the contract on 23 February
2024 after sending a default notice on 5 February where he requested the payment of his
salaries of November 2023, December 2023 and January 2024, as well as his advance
payment.
7.
In view of the above, the Judge acknowledged that its was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
8.
The Judge 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 obligation(s).
9.
In this respect, the Judge observed that the club had contended it had made a payment of
USD 3,000 on 16 December 2023. However, the Judge noted that the club had not furnished
any evidence to substantiate this claim. The absence of supporting documentation or proof
of payment precluded the Judge from verifying the accuracy of the club's assertion.
10. The Judge deemed imperative to underscore the principle of onus probandi, which dictates
that the burden of proof rested upon the party making an allegation. In this case, the club
had failed to meet its burden of proof (onus probandi incumbit ei qui dicit, non ei qui negat).
Consequently, the Judge was unable to give credence to the club's argument in this matter,
and the claim was thus considered unproven.
11. As a result, the Judge assumed that at the date of termination (23 February 2024), USD
13,000 was outstanding (USD 9,000 as advance payment and salaries from November 2023
until February 2024, i.e. USD 1,000*4). Said amount corresponds to significantly more than
3 monthly salaries as required by art. 14bis par. 1 of the Regulations. and therefore the
player terminated the contract with just cause. The Judge noted that the club's persistent
non-payment of salaries, despite the notices and ample opportunity to rectify the situation,
demonstrated a disregard for contractual and legal responsibilities.
pg. 6
REF. FPSD-14026
ii. Consequences
12. Having stated the above, the Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
13. The Judge observed that the outstanding remuneration at the time of termination, coupled
with the specific requests for relief of the player, are amounting to 13,000, as explained
above.
14. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Judge 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 13,000,
15. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Judge 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.
16. Having stated the above, the 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 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.
17. In application of the relevant provision, the 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 Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
18. As a consequence, the 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 Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
19. Bearing in mind the foregoing as well as the claim of the player, the 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 Judge concluded
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REF. FPSD-14026
that the amount of USD 5,000 (i.e. the salaries from March 2024 until July 2024, i.e. USD
1,000*5) serves as the basis for the determination of the amount of compensation for
breach of contract.
20. In continuation, the 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.
21. The Judge noted in this respect that the player remained unemployed.
22. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Judge decided that the club must pay the amount of
USD 5,000 to the player which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
23. 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 termination until the date of effective
payment.
iii. Compliance with monetary decisions
24. Finally, taking into account the applicable Regulations, the 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.
25. In this regard, the 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.
26. Therefore, bearing in mind the above, the 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.
pg. 8
REF. FPSD-14026
27. The Respondent is hereby mandated to effectuate complete payment, inclusive of all
accrued and applicable interest, to the specified bank account as delineated by the
Claimant within the Bank Account Registration Form.
28. The 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
29. The 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 Judge decided that no procedural costs were to be imposed on the
parties.
30. Likewise, and for the sake of completeness, the 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.
31. Lastly, the Judge concluded his deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-14026
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Bilel Ben Brahim, is partially accepted.
2.
The Respondent, SHABAB AL JABAL, must pay to the Claimant the following amounts:
- USD 13,000 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of USD 9,000 as from 28 October 2023 until the date of effective payment;
- 5% interest p.a. over the amount of USD 1,000 as from 1 December 2023 until the date of effective payment;
- 5% interest p.a. over the amount of USD 1,000 as from 1 January 2024 until the date of effective payment;
- 5% interest p.a. over the amount of USD 1,000 as from 1 February 2024 until the date of effective payment;
- 5% interest p.a. over the amount of USD 1,000 as from 1 March 2024 until the date of effective payment;
- USD 5,000 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 23 February 2024 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. 10
REF. FPSD-14026
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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