Labour Disputes
Texto da decisão
REF FPSD-5819
Decision of the
Dispute Resolution Chamber
passed on 28 September 2022
regarding an employment-related dispute concerning the player
Oussama Boughanmi
BY:
André dos Santos Megale (Brazil), Single Judge of the DRC
CLAIMANT:
Oussama Boughanmi, Tunisia
Represented by R&A Sports Law
RESPONDENT:
Najran SC, Saudi Arabia
Represented by Mr Ahmas Alamir
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I. Facts of the case
1.
On 1 September 2021, the Tunisian player, Mr Oussama Boughanmi (hereinafter: the
player or the Claimant) and the Saudi club, Najran SC (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract) valid as
from the date of its signature until 31 May 2022.
2.
In accordance with clause 5 of the contract, the club undertook to pay to provide the
player, inter alia, with the following remuneration and benefits:
-
Sign-on fee: USD 5,000 net payable by 15 September 2021;
-
Monthly salary: USD 8,888 net;
-
Housing;
-
Transportation;
-
2 flight tickets (return tickets) to and from Saudi Arabia;
3.
Clause 8.1 of the contract reads as follows: “In the event that the Player commits a
violation of any of his obligations under this Contract or the applicable regulations,
the Club may impose disciplinary sanctions against the Player. The Club shall duly
charge the Player and shall notify him in writing of the details of such charges. The
Player shall be provided with an opportunity to respond to the charges. In particular,
the Player declares that he is aware of the applicable SAFF regulations, including the
Players’ Status Regulations and the Disciplinary and Ethics Regulations (which are
freely available on the official SAFF website)”
4.
By means of his letter dated 10 March 2022, the player put the club in default of
payment concerning, inter alia, the overdue salaries of December 2021, January 2022
and February 2022, thereby granting the club a 15 days’ deadline to remedy the
default.
5.
Subsequently, by means of his letter dated 26 March 2022, the player unilaterally
terminated the contract on the basis of art. 14bis of the Regulations on the Status and
Transfer of Players (RSTP).
6.
The player has remained unemployed following the termination of the contract.
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II. Proceedings before FIFA
a. Position of the Claimant
7.
On 21 April 2022, the player lodged a claim against the player before FIFA, requesting
the Respondent be ordered to pay outstanding remuneration and compensation for
breach of contract in the amount of USD 53,328 and SAR 2,988, plus 5% interest p.a.
as from the last day of the month (regarding salaries) and as from the termination of
the contract (concerning the compensation requested):
Outstanding remuneration: USD 34,366
-
USD 8,888 as salary of December 2021;
-
USD 8,888 as salary of January 2022;
-
USD 8,888 as salary of February 2022;
-
USD 7,702 as salary of March 2022 (partially requested, until the 26th of
March, i.e. until the date of termination of the contract).
Compensation for breach of contract: USD 18,962 and SAR 2,988
-
USD 1,186 as salary of March 2022 (partially requested, as from the 27th until
the 31 of March 2022);
-
USD 8,888 as salary of April 2022;
-
USD 8,888 as salary of May 2022;
-
SAR 2,988 as reimbursement of flight tickets.
8.
In his claim, the player explained that the club tried to pressure on the player to
terminate his contract and made him train alone.
9.
In addition, the Claimant maintained that the club failed to pay his salaries as from
December 2021 and that the club even failed to reply to his default notice, which led
the player to terminate the contract. In this respect, the Claimant argues having
terminated the contract with just cause on 26 March 2022 in accordance with art.
14bis of the RSTP.
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b. Position of the Respondent
10. In its reply, the club acknowledged not having paid the player’s salaries as from
December 2021 onwards.
11. The above being said, the club stated the following as to the behaviour of the player:
-
“On February 27, 2022, the Claimant left the training session without any
permission from the technical director (Annex10)”.
-
“On 3 March 2022, the director of the first team management (henceforth
"manager") of the first team of the respondent's football club sent a letter to the
director of the professionalism department of the respondent, in which he
complained about the claimant's misbehaviours and requested that he be
sanctioned for leaving the training session without permission. (Annex10)”.
-
“On March 5, 2022, the head coach (hereafter "head coach") of the first team of the
respondent's football club wrote a letter to the president of the club, to the director
of the first team management, and to the director of the professionalism
department of the respondent, in which he complained about the claimant's
abusive conduct and lack of professionalism required (Annex11)”.
-
“On March 11, 2022, the director of the respondent's professionalism department
sent two warning letters to the claimant informing him of his violations of the
conduct and penalties regulations (Annex13)”.
12. In this context, the club explained that, “on March 24, 2022, the structured committee
consisting of the vice president, the director of football, and the director of
professionalism of the respondent met to discuss the claimant's irresponsible
behaviour and to take the appropriate action. The committee decided to deduct 40%
of the player's monthly salary for two consecutive months, March, and April 2022”.
13. In this respect, while referring to the alleged misbehaviours of the player, the club
held that “even though the respondent has just cause to unilaterally terminate the
labour contract with the claimant, the respondent has not done so in order to
maintain contract stability”.
14. In connection with the outstanding salaries due to the player, the club held that “the
respondent does not dispute that the claimant is owed three months' worth of salary.
However, the respondent affirms that the claimant negotiated with them to mutually
terminate the contract during and after the period of the claimant's default letter of
the overdue payments' time limit (Annex23). This post-negotiation demonstrates that
the claimant's intention was to terminate the contract, not to maintain its stability”.
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15. In this context, the club held that despite the club being in default of payment, “the
principle of reciprocity in contractual relationships shows us that, while the
respondent had the aforesaid payments in arrears, the claimant also breached the
employment relationship between the parties by refusing to train or by his abusive
behaviour during training, which led to an untannable situation with the claimant”.
16. Thus, the club stressed that the “two imposed fines of 40 percent deduction of the
value of the monthly salary shall be deducted from those overdue payments in
general and specifically from the salary of the month of March 2022”.
17. The above being said, the club requested FIFA to decide that the player’s claim shall
be rejected and, subsidiary, only award the amount of USD 35,848 to the player as
compensation for breach of contract.
c. Rejoinder of the Claimant
18. In his rejoinder, the Claimant referred to the allegations of the Respondent and
highlighted that the latter acknowledged not having paid his salaries as from
December 2021 onwards, as well as having duly received his default notice of 10
March 2022.
19. As for the disciplinary sanctions imposed by the club, the player held that those fines
were unilaterally imposed on the player in order to reduce his financial entitlements.
In addition, the player stressed that the club did not comply with clause 8.1 of the
contract, insofar as the club failed to notify him of any disciplinary proceedings,
thereby violating his right to be heard.
d. Rejoinder of the Respondent
20. In its rejoinder, the Respondent reiterated its previous argumentation.
21. In addition, the club held that, “since the respondent issued the claimant two warning
letters to his official email address, that provided in Article 1 of the contract;
([email protected]), on March 11, 2022, informing him of his violations of
the conduct and penalty regulations, the claimant's denial that he violated the club's
rules is implausible (Annex3). The fact that the claimant did not respond or even
object to these warning letters indicates his acceptance”.
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22. As to the argument of the player that the disciplinary proceedings were initiated in
order to offset the player’s financial dues, the club held that “it is obvious that the
player's violations were occurred prior to his formal notification and request to repay
his debt”.
e. Unsolicited correspondence of the Claimant
23. On 30 August 2022, the Claimant acknowledged having received the amount of USD
26,664 from the Respondent on 24 August 2022, which corresponds to the
outstanding salaries of December 2021, January 2022 and February 2022.
24. In view of the above, the Claimant amended his request for relief as for the
outstanding remuneration and requested to be awarded the following amounts:
-
USD 7,702 corresponding to the salary of March 2022 (partially requested, until
the 26th of March, i.e. until the date of termination of the contract), plus 5%
interest p.a. as from the due date until the date of effective payment;
-
Default interest 5% p.a. on the amount of USD 26,664 in connection with the
salaries of December 2021, January 2022 and February 2022 as from their due
dates until 24 August 2022.
25. In connection with the compensation for breach of contract, the Claimant reiterated
his request for relief, i.e. USD 18,962 and SAR 2,988, plus 5% interest p.a. as from the
termination of the contract (see point 7 supra).
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred
to as the 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
21 April 2022 and submitted for decision on 28 September 2022. Taking into account
the wording of art. 34 of the June 2022 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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27. Subsequently, the members of 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 (July 2022
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 Saudi club.
28. 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 (July 2022
edition) and considering that the present claim was lodged on 21 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
29. 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
30. His competence and the applicable regulations having been established, 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 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
31. The foregoing having been established, the Single Judge moved to the substance of
the matter and recalled that the Claimant is requesting to be awarded outstanding
remuneration and compensation for breach of contract in the total amount of USD
26,664 and SAR 2,988, plus 5% interest p.a.
32. The Single Judge further noted that, in his claim, the Claimant held that the club failed
to pay his salaries as from December 2021 onwards and that despite having put the
club in default of payment, the latter failed to remedy the default, reason why the
player was left with no alternative but to terminate the contract.
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33. Moreover, the Single Judge acknowledged that, in his latest correspondence, the
Claimant acknowledged having received the salaries of December 2021, January and
February 2022, but only on 24 August 2022.
34. The above being said, the Single Judge recalled that, on its part, whereas the club
acknowledged not having paid the player’s salaries as from December 2021 in due
time, the club held that the player’s behaviour was against the disciplinary code of the
club, reason why disciplinary proceedings were opened against him.
35. In this regard, the Single Judged noted the argument of the club that the player was
imposed 2 fines, consisting on a 40% reduction of the player's salaries of March and
April 2022. In this respect, the club argued that -on the basis of the player’s disciplinary
violations- the club would have had just cause to terminate the contract, but it did not
do so in order to respect the principle of contractual stability. In this context, the
Single Judge observed that the club requested the player’s claim to be rejected or,
subsidiary, the player’s financial dues to be reduced taking into account the 2
disciplinary sanctions imposed on him.
36. In view of the aforementioned, the Single Judge deemed that the key question in the
present dispute is whether the Claimant terminated the contract with just cause on
26 March 2022.
37. In this respect, the Single Judge stressed that, considering that the club acknowledged
not having paid the player’s salaries of December 2021, January 2022 and February
2022 and that the player put the club in default on 10 February concerning the said
salaries, thereby granting the club a 15 days’ deadline to remedy the default, the
player did terminate the contract with just cause cf. art. 14bis of the Regulations on
26 March 2022.
38. In connection with the alleged disciplinary violations of the player, the Single Judge
noted that -as per the allegations and supporting documentation provided by the
club- those would have started at the end of February 2022, the alleged disciplinary
body of the club holding a meeting on 24 March 2022, i.e. 2 days prior to the player’s
termination of the contract, at a moment where the club was well aware of the fact
that 3 monthly salaries were outstanding and that the player had put the club in
default of payment. In addition, as per the documentation provided by the club, the
Single Judge observed that there is no sign indicating that the player was actually part
of the said proceedings, the club’s disciplinary body directly imposing the
aforementioned fines on the player.
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39. In this context, the Single Judge stressed that the jurisprudence of the DRC shall be
recalled and it shall be stated that a club shall not misuse its disciplinary instruments
in order to offset its financial obligations towards its players.
40. In the present case, continued the Single Judge, the allegations of the player
concerning the club’s strategy to reduce its financial dues is to be accepted,
considering: 1.) the fact that the club was in default of payment of several monthly
salaries and; 2.) that the club only undertook disciplinary actions against the player
once the latter had put the club in default of payment.
41. Hence, the Single Judge decided that the allegations of the Respondent to consider
the disciplinary sanctions imposed by the club in order to reduce the player’s financial
entitlements need to be rejected.
42. Thus, concluded the Single Judge, it is to be decided that the player terminated the
contract with just cause cf. art. 14bis of the Regulations on 26 March 2022.
ii. Consequences
43. Having stated the above, the members of the Single Judge turned their attention to
the question of the consequences of such unjustified breach of contract committed
by the Respondent.
44. The Single Judge observed that the outstanding remuneration at the time of
termination, coupled with the specific requests for relief of the player, are equivalent
to USD 7,702 corresponding to the salary of March 2022 (partially requested, until the
26 of March, i.e. until the date of termination of the contract), considering that the
Claimant himself acknowledged -via his unsolicited correspondence- having received
the payment of the salaries of December 2021, January 2022 and February 2022.
45. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single 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 7,702.
46. 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 amount of USD 7,702 as from 1 April 2022 until
the date of effective payment.
47. Moreover, also considering the Claimant’s request, the Single Judge decided to award
the Claimant interest at the rate of 5% p.a. on the amounts that were paid late, i.e. on
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the amount of USD 26,664 (which corresponds to the salaries of December 2021,
January 2022 and February 2022), as from their respective due dates until the date on
which the said amount was paid, i.e. until 24 August 2022
48. 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.
49. In application of the relevant provision, the Single Judge held that he 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 established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
50. As a consequence, the members of 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.
51. 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 18,962 (i.e. the
salaries of March 2022 -as from the 27th until the 31 of March 2022-, the salary of
April 2022 and the salary of May 2022) serves as the basis for the determination of
the amount of compensation for breach of contract.
52. 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.
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53. In this respect, the Single Judge observed that the player did not find any new
employment following the termination of the contract at hand and, consequently, the
Claimant was not in a position to mitigate his damages in accordance with art. 17 of
the Regulations.
54. 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 18,962 to the player (i.e. the residual value of the contract), which was
to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
55. In addition, the Single Judge noted that the Claimant requested to be awarded the
amount of SAR 2,988 as reimbursement of flight tickets. In this respect, the Single
Judge decided that, considering that the Claimant’s request to be awarded the
requested amount finds a contractual basis under clause 5 of the contract and that
the player provided supporting documentary evidence of having incurred in flight
ticket expenses for the said amount, the amount of SAR 2,988 shall also be awarded
to the Claimant as compensation for breach of contract.
56. Lastly, taking into consideration the player’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the player interest on
said compensation at the rate of 5% p.a. as of 21 April 2022 (i.e. as from the date on
which the claim was lodged before the Football Tribunal) until the date of effective
payment.
iii. Compliance with monetary decisions
57. 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.
58. 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.
59. 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
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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.
60. 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.
61. 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
62. 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.
63. 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.
64. Lastly, the Single Judge concluded its 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, Oussama Boughanmi, is partially accepted.
2.
The Respondent, Najran SC, has to pay to the Claimant the following amounts:
-
USD 7,702 as outstanding remuneration, plus 5% interest p.a. as from 1 April 2022
until the date of effective payment;
-
5% interest p.a. on the amount of USD 26,664, as follows:
-
-
On the amount of USD 8,888, as from 1 January 2022 until 24 August 2022;
-
On the amount of USD 8,888, as from 1 February 2022 until 24 August 2022;
-
On the amount of USD 8,888, as from 1 March 2022 until 24 August 2022.
USD 18,962 and SAR 2,988 as compensation for breach of contract, plus 5%
interest p.a. as from 21 April 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 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.
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7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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).
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