Labour Disputes
Texto da decisão
REF. FPSD-11962
Decision of the
Dispute Resolution Chamber
passed on 10 January 2024
regarding an employment-related dispute concerning
the player Amir Bourekeb
BY:
Alejandro ATILIO TARABORELLI (Argentina)
CLAIMANT:
Amir Bourekeb, Algeria
RESPONDENT:
Jahra SC, Kuwait
pg. 2
REF. FPSD-11962
I. Facts of the case
1. On 1 August 2023, the player and JAHRA SC concluded an employment contract valid as
from “the date of the arrival of the [player] to the country” until the end of the season
2023/2024 (i.e. until 30 June 2024).
2. According to art. 6 of the contract, the player was entitled to USD 2,500 per month.
3. Clause 11 of the contract stipulated the following:
“If the second party {the player) wishes to leave the club or move to another club, the second
party {the player) undertakes to pay all salaries received during the contract period and pay all
the salaries until the end of his contract”
4. According to the player, he arrived to Kuwait on 21 July 2023 (note: air ticket on file) and
participated in all the training sessions, and played his first official match with the club on
24 August 2023 (note: photos on file).
5. According to the player, on 29 August 2023, the club’s director called him asked him to
sign a mutual termination agreement (note: copy on file, signed by the club only). The
player explained that he refused to signed it.
6. Subsequently, the player explained that, on 28 August 2023, the club’s sports director
provided a list of players’ via WhatsApp, where he was not included.
7. On 27 August 2023, the Kuwaiti newspaper, Al Jarida, allegedly published that the club
decided to terminate the player’s contract.
8. Thereafter, the player explained that he was instructed to leave the country on 31 August
2023, and the club ordered him to return the apartment and car keys.
9. On 12 September 2023, the player’s legal representative contacted the Kuwait FA in order
to have a confirmation on whether the contract was terminated, to no avail.
10. On 8 October 2023, the club sent a wanting to the player, indicating that he was absent on
24 August 2023 and left Kuwait without permission on 31 August 203.
11. The player explained that he remained unemployed.
II. Proceedings before FIFA
12. On 27 September 2023, the player lodged a claim before the FIFA Football Tribunal for
breach of contract without just cause and requested the following amounts, plus 5%
interest p.a. as from the due dates:
USD 2,500 as outstanding salary for the month of August 2023;
USD 27,500 as compensation for breach of contract without just cause.
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REF. FPSD-11962
13. In its reply, the club stated that the player was absent from team training after the match
with Kuwait Club on 24th August 2023.
14. The club argued that the player left Kuwait without permission on 3 August 2023, without
informing the club or the technical staff.
15. The club stated that the contract with the player has not been terminated, and he is still
registered among the club's players.
16. The club also asserted that it cannot pay the player’s salaries due to him leaving the
country without permission and lacking bank account accessible to them.
17. The club also referred to clause 11 of the contract, stating that if the player leaves the club
or moves to another, he is shall pay for all the experience gained during the contract
period.
18. The club considered that it was the player who terminated the contract by leaving.
19. In his replica, the Claimant insisted in his previous arguments.
20. The player insisted that he was asked to leave the country by 31 August 2023.
21. The player asserted that that the club's accusations of him not attending training after 24
August 2023, are false and unsupported by evidence. He argued that the club initiated the
contract termination and provided falsified documents for the termination.
22. In its duplica, the Respondent confirmed its previous views.
23. The club argued that the player left Kuwait on 31 August 2023 without permission from
the club or knowledge of the technical staff.
24. The club explained that it tried to pay the player for August 2023, but that he could not
collect the relevant check as it was issued in September 2023 (note: copy on file).
25. The club insisted that the player is still considered as part of the team.
26. The club denied responsibility for news published on social media regarding the
termination of the player's contract.
27. The club requested that the player pays the full value of the contract.
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REF. FPSD-11962
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 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 27 September 2023
and submitted for decision on 10 January 2024. Taking into account the wording of art. 34
of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules),
the May 2023 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 an Algerian and French player and a
Kuwaiti club.
3.
Subsequently, the Single 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
date when the present claim was lodged, 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 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 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.
Its competence and the applicable regulations having been established, the Single Judge
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 Single Judge emphasised that in the following
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REF. FPSD-11962
considerations he 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
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of that this is a case for an alleged termination of the contract.
7.
However, the Judge noted that the club actually denied that any termination occurred.
8.
In this respect, the Judge observed that the player left Kuwait on 31 August 2023, although
from the evidence on file, the circumstances on file are unclear. In the view of the Judge,
there is insufficient evidence on file to support the player’s narrative. The Judge noted that
the player relies on alleged conversations, but there is no evidence of them actually
happening. The Judge also considered the player's reference to a news article, recognizing
the inherent limitations of such a source in establishing factual veracity.
9.
In the view of the Judge, the most compelling evidence is a mutual termination agreement
presented by the club and signed by its general secretary, indicating the contract was
terminated on 28 August 2023. Yet, while this is clearly an indicator that the club lost
interest in the player’s services, the presentation of a mutual termination agreement, per
se, is not equivalent to unilaterally terminating the contract.
10. In general, the Judge considered that a mutual termination typically requires the consent
of both parties. If only one party signs, it only reflects the offering party's desire rather than
a unilateral decision. This is also contradicted by the fact that the club now asserts that it
still considers the contract to be valid.
11. In addition, the Judge noted a notable absence of direct communication between the player
and the club, as exemplified by the omission of official default notices. Instead, the player
opted for a tardy dispatch of a letter addressed to the Kuwait Football Association. The
principles contained in the Regulations, including the principle of maintenance of
contractual stability, usually requires parties to undertaking reasonable efforts to give a
previous chance to resolve any disagreement by, for instance, sending default notices in
order to allow the counterparty to remedy its default. In the matter at stake, there is no
evidence that the player provided this chance.
12. In general, the Judge concluded that the matter at hand presents a significant lack of clear,
written communication between the player and the club.
13. As a result, the Judge had no other option than to conclude that the player left prematurely.
14. However, the Judge agreed that the player is entitled to receive his salary of August 2023
(USD 2,500), which became already due when the contract was terminated.
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REF. FPSD-11962
15. In addition, in accordance with the longstanding jurisprudence of the Football Tribunal, the
Judge decided to award 5% interest p.a. as from the due date.
16. On the other hand the Judge took note of a seemingly contradictory stance presented by
the club in its counterclaim. Despite contending that the contractual agreement remains in
effect, the club concurrently sought the entirety of the contract's pecuniary value. Then, if
the contract is deemed to be in force, the request for the full contract value appears
incongruent.
17. Therefore, the Judge established that counterclaim had be dismissed for its inconsistency.
ii. Compliance with monetary decisions
18. 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.
19. 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.
20. 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.
21. 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.
22. 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
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REF. FPSD-11962
23. 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 Chamber decided that no procedural costs were to be imposed on
the parties.
24. 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.
25. Lastly, the Judge concluded his deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-11962
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Amir Bourekeb, is partially accepted.
2.
The Respondent, Jahra SC, must pay to the Claimant the amount of USD 2,500 as
outstanding remuneration plus 5% interest p.a. as from 1 September 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 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-11962
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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