Labour Disputes
Texto da decisão
REF FPSD-4148
Decision of the
Dispute Resolution Chamber
passed on 13 January 2022
regarding an employment-related dispute concerning the player Zied
Boughattas
BY:
Frans de Weger (Netherlands), Chairperson
Sihon Gauci (Malta), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
Zied Boughattas, Tunisia
Represented by Mr Anis Ben Mime
RESPONDENT:
ENPPI, Egypt
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I.
Facts of the case
1.
On 16 November 2020, the Tunisian player, Mr Zied Boughattas (hereinafter: the player or
the club) and the Egyptian club, ENPPI (hereinafter: the club or the Respondent) concluded
an employment contract (hereinafter: the contract), valid for 3 sporting seasons, i.e. as from
22 November 2020 (date on which the season 2020/2021 in Egypt started), until 30 June
2023.
2.
In accordance with clause 3 of the contract, the club undertook to pay to the player, inter
alia, the following remuneration (in accordance with the information displayed in TMS, the
club undertook to pay to the player a total fixed remuneration of USD 1,064,514 during the
whole term of the contract):
During the season 2020/2021: USD 322,580
USD 80,645 on 15 December 2020;
USD 80,645 on 15 March 2021;
USD 80,645 on 15 May 2021;
USD 80,645 on 15 July 2021;
During the season 2021/2022: 354,836
USD 88,709 on 1 October 2021;
USD 88,709 on 1 February 2022;
USD 88,709 on 1 April 2022;
USD 88,709 on 1 June 2022
During the season 2022/2023: USD 387,096
USD 96,774 on 1 September 2022;
USD 96,774 on 1 February 2023;
USD 96,774 on 1 April 2023;
USD 96,774 on 1 June 2023.
3.
By means of his letter dated 7 August 2021, the player put the club in default of payment
concerning the unpaid part of the instalment due on 15 May and the full instalment due on
15 July 2021, in the amount of USD 125,000, thereby granting the club a 15 days’ deadline
to remedy the default; however, to no avail.
4.
Subsequently, the player unilaterally terminated the contract on 29 August 2021.
5.
Following the termination of the contract, the player has remained unemployed.
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II. Proceedings before FIFA
a. Position of the Claimant
6.
On 29 October 2021, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration and compensation for breach of contract in the total
amount of USD 866,833, plus 5% interest p.a., broken down by the player as follows:
Outstanding remuneration: USD 125,000, plus 5% interest p.a. as from 15 May 2021
USD 44,355, corresponding to the unpaid part of the instalment due on 15 May;
USD 80,645 corresponding to the the full instalment due on 15 July 2021.
Compensation for breach of contract: USD 741,833, plus 5% interest p.a. as from 29 August
2021
USD 741,833, corresponding to the residual value of the contract.
7.
In his claim, the player argued that, despite having put the club in default of payment
concerning the unpaid part of the instalment due on 15 May 2021 and the full instalment
due on 15 July 2021, the club failed to comply with its financial obligations towards the
player.
8.
In this respect, considering the amount that was outstanding and the lack of compliance of
the club within the deadline granted by the player via his default notice dated 7 August 2021,
the latter argued that he terminated the contract with just cause on 29 August 2021 and he
is, therefore, entitled to receive the outstanding remuneration due at the date of termination
of the contract, as well as a compensation for breach of contract, equal to the residual value
of the contract.
b. Position of the Respondent
9.
Despite having been invited to reply to the claim, the Respondent failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. 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 29 October 2021 and submitted for decision
on 13 January 2022. Taking into account the wording of art. 34 of the October 2021 edition
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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.
11. 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 (August 2021 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
an Egyptian club.
12. 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 (August 2021 edition), and
considering that the present claim was lodged on 29 October 2021, the August 2021 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
13. 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
14. 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.
i. Main legal discussion and considerations
15. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Claimant is requesting to be awarded outstanding
remuneration and compensation for breach of contract in the total amount of USD 866,833,
plus 5% interest p.a.; and that, on its part, the Respondent failed to reply to the claim.
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16. Thus, the DRC underscored that the allegations of the Claimant, if supported with the
necessary documentary evidence, will be deemed as uncontested facts.
17. The Claimant argues that, following his default notice -sent to the Respondent on 7 August
2021- the club failed to remedy the default, i.e. it failed to pay the amount of USD 125,000
that was outstanding at that moment in time (corresponding to the unpaid part of the
instalment due on 15 May 2021 and the full instalment due on 15 July 2021). In this context,
considering that the aforementioned amount was not paid within the 15 days’ deadline
granted by the player to the club in the default notice dated 7August 2021, the Claimant
argued that he terminated the contract with just cause on 29 August 2021.
Did the player terminate the contract with just cause on 29 August 2021 ex. art. 14bis RSTP?
18. First, it needs to be noted that the salary contemplated that the instalments due to the player
were not paid monthly, but in accordance with its own payment schedule. Thus, in order to
assess whether the lack of payment of the club can be considered as a breach of art. 14bis
RSTP, the DRC decided that the instalments due to the player during the relevant season shall
be split (on a pro-rata basis) throughout all the months of the said season.
19. In accordance with the information displayed in TMS, the season 2020/2021 in Egypt started
on 22 November 2020 and ended on 26 August 2021 (9 months in total).
20. In doing so, it can be established that the player -during the season 2020/2021- was entitled
to a (fictional) monthly salary of USD 35,852 (322,580 / 9 = 35,852). Hence, the Chamber
determined that the said amount shall serve as basis for the assessment of whether the player
did or did not terminate the contract with just cause ex. art. 14bis RSTP.
21. Considering that it has remained undisputed that the player put the club in default of
payment of the amount of USD 125,000 on 7 August 2021, thereby urging the club to
proceed with the payment of the said amount within the following 15 days and that the club
failed to do so, the Chamber determined that the player terminated the contract with just
cause ex. art. 14bis RSTP on 29 August 2021, since -at that moment in time- an amount
higher than 2 (fictional) monthly salaries was outstanding and insofar as the club failed to
remedy the default within the granted deadline, despite the player having complied with the
requisites of art. 14bis RSTP.
ii. Consequences
22. 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.
23. 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 USD 125,000,
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corresponding to the unpaid part of the instalment due on 15 May 2021 (USD 44,355) and
to the full instalment due on 15 July 2021 (USD80,645).
24. 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 125,000,
25. 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 125,000, as follows:
-
On the amount of USD 44,355, as from 16 May 2021 until the date of effective
payment;
-
On the amount of USD 80,645, as from 16 July 2021 until the date of effective
payment.
26. 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.
27. 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.
28. 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.
29. 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 USD 741,932 (i.e. the remuneration due to the player for the seasons
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2021/2022 and 2022/2021; cf. point 2. supra) serves as the basis for the determination of
the amount of compensation for breach of contract.
30. 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.
31. In this respect, the DRC verified that the player did not sign any new contract following the
termination of the contract at stake and, consequently, the player was not able to mitigate
his damages.
32. Notwithstanding the considerations made in point 29 supra, the DRC noted that the Claimant
only requested to be awarded the amount of USD 741,833 as compensation for breach of
contract, despite him being in principle entitled to the residual value of the contract, which
amounts to USD 741,932. Thus, 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 741,833 to the player (in order not to contravene the legal principle: ne ultra
petita), which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
33. 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 29 October 2021, i.e. the date on which the player lodged the
claim against the club, until the date of effective payment.
iii. Compliance with monetary decisions
34. 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.
35. 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.
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36. 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.
37. 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.
38. 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
39. 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.
40. 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.
41. Lastly, the DRC 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, Zied Boughattas, is partially accepted.
2.
The Respondent, ENPPI, has to pay to the Claimant, the following amount(s):
- USD 125,000 as outstanding remuneration plus 5% interest p.a. calculated as follows:
- On the amount of USD 44,355, as from 16 May 2021 until the date of effective payment;
- On the amount of USD 80,645, as from 16 July 2021 until the date of effective payment.
- USD 741,833 as compensation for breach of contract, plus 5% interest p.a. as from 29
October 2021 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.
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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.
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).
CONTACT INFORMATION
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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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