Labour Disputes
Texto da decisão
REF FPSD-6044
Decision of the
Dispute Resolution Chamber
passed on 12 October 2022
regarding an employment-related dispute concerning the player
Ilir Camaj
BY:
Ms Sihon Gauci (Malta)
CLAIMANT:
Player Ilir Camaj, Montenegro
Represented by Mr Lorin Burba
RESPONDENT:
Dhofar Club, Oman
Represented by Mr Abdelrahman Hashish
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REF FPSD-6044
I.
Facts of the case
1.
On 29 January 2022, the Montenegrin player, Ilir Camaj (hereinafter the Claimant or the
player), and the Omani club, Dhofar Club (hereinafter the Respondent or the club),
concluded employment agreement (hereinafter the Employment Agreement), valid as from
1 February 2022 until 31 May 2023 or the end of the 2022/2023 season.
2.
In the respective agreement concerning the transfer of the Claimant from the
Montenegrin club, Decic Tuzi, to the Respondent, the following provision was agreed
upon:
“Clause 3: Player/ Mr ILIR CAMAJ, Nationality: Montenegro Passport No: S64CJ2413 and Date
of birth: 24/06/1996 , is obligated to pay to his former club FC Decic Tuzi an amount of
$5000 Five thousand US dollars from the salary of the first month that he receives from the
first party, and in case the amount is not paid to his former club FC Decic Tuzi, the first party
bas the right to deduct this amount from the player's salary Mr ILIR CAMAJ, Nationality:
Montenegro Passport No: S64CJ2413 and Date of birth: 24/06/1996 and pay it to FC Decic
Tuzi club.”
3.
4.
In Clause 4 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the parties) agreed upon, inter alia, the following financial terms:
−
Total fixed remuneration of USD 160,000 for the duration of the Employment
Agreement, payable in monthly salaries of USD 10,000;
−
Bonuses: (a) USD 10,000 for winning either His Majesty the Sultan’s Cup; (b)
USD 5,000 in case the Claimant will be the top scorer of the Omantel League
Championship, His Majesty the Sultan’s Cup, or AFC Cup; (c) USD 5,000 in case the
Respondent would have been promoted to the Group Stage of the AFC Cup during
the season 2021/2022; (d) USD 20,000 in case the Respondent would have won the
AFC Cup during the season 2021/2022; (e) collective bonuses as decided by the
Respondent.
−
Further benefits:
- “Travel tickets for the player once during each season, and another ticket is
added to the player in the next half season”
- “private car for transportation during the contract period”
- “suitable housing” (water and electricity excluded)
- “treatment and free medical services within the limits of the capabilities
available clinics and hospitals in the Sultanate”
On 15 March 2022, the Claimant suffered an injury during the League match.
Consequently, on 21 February 2022, the Claimant underwent a medical examination at
the Respondent’s designated clinic.
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5.
On 14 April 2022, the Claimant sent a default notice to the Respondent, requesting the
amount of USD 21,000, arguing that since the beginning of the employment relationship,
he only received the amount of USD 4,000. The Claimant granted Respondent 15 days to
comply with its contractual obligations, however, to no avail.
6.
On 17 April 2022, the Claimant underwent a further medical examination.
7.
On 9 May 2022, the Claimant served a termination letter to the Respondent.
8.
The termination letter read, inter alia, as follows:
“In this regard, your club has failed to pay to Mr. Camaj the following amounts:
“(a)The full monthly salaries for the months February and March 2022, in total USD
16,000 (sixteen thousand US dollars) net;
(b)The amount of USD 5,000 (five thousand US dollars) net which Mr. Camaj owes to the
Montenegrin club FK Decic Tuzi, as part of the Professional Football Player Transfer
Agreement of date 30.01.2022; amount which was supposed to be paid from the first full
salary that Mr. Camaj would have received from Dhofar Club to his former club.
(c)The full monthly salary of April 2022, in total USD 10,000 (ten thousand US dollars).
(…)
your club has put in place a pure discriminatory behavior towards Mr. Camaj. In this
regard, it results that Dhofar Club, intentionally and willingly, has not paid only to my
client the financial dues, whilst other players of the team have received in part or in full
the monthly salary/salaries for the period February and March 2022”.
9.
In July 2022, the Claimant signed a new employment agreement (hereinafter the New
Employment Agreement) with the Albanian club KF Egnatia, valid as from 1 August 2022
until 30 June 2024.
10. In accordance with the information in the Transfer Matching System (TMS), the monthly
salary of the Claimant amounted to ALL 141,133 (Albanian Lek), which corresponds to
USD 1,232.17.
II. Proceedings before FIFA
11. On 13 May 2022, the Claimant filed the claim at hand before FIFA.
12. The Respondent failed to reply to the claim within the stipulated deadline.
13. A brief summary of the position of the parties is detailed in continuation.
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a. Position of the Claimant
14. According to the Claimant, “the Respondent has failed to comply with the contractual
obligations resulting from the Contract, and is obliged to pay the overdue payables amounting
to USD 28,903.23 (twenty-eight thousand nine hundred three US dollars and twenty-three
cents) and a compensation for the breach of contract amounting to USD 153,032.25 (one
hundred fifty-three thousand thirty-two US dollars and twenty-five cents)”, along with the
applicable interest of 5% p.a. as from the due dates until the date of the effective
payment.
15. The Claimant argued that he terminated the Employment Agreement on 9 May 2022 with
just cause, in line with “art. 14bis of the RSTP, i.e. the amount of overdue payables exceeds
two salaries and the obligation of putting in default the Respondent for the failure to comply
with the financial liabilities was met by the Claimant, to which is added also the abusive and
discriminatory conduct” and that the Respondent shall pay a compensation in accordance
with art. 17 of the Regulations.
16. As to the calculation, the Claimant provided for the following break-down:
Outstanding remuneration
“(a) For the month February 2022, the amount of USD 10,000 (ten thousand US dollars), from
which the Respondent has effectively paid the amount of USD 4,000 (four thousand US dollars).
Therefore, there is an unpaid balance of USD 6,000 (six thousand US dollars);
(b) For the month March 2022, the amount of USD 10,000 (ten thousand US dollars);
(c) For the month April 2022, the amount of USD 10,000 (ten thousand US dollars);
(d) For the month May 2022, the pro rata for the period 1 May 2022-9 May 2022, the amount
of USD 2,903.23 (two thousand nine hundred three US dollars and twenty-three cents);
(e) In total, USD 28,903.23 (twenty-eight thousand nine hundred three US dollars and twentythree cents).”
Compensation
“the total residual value of the Contract, as from the date 10 May 2022, amounts to
USD 153,032.25 (one hundred fifty-three thousand thirty-two US dollars and twenty-five
cents).”
b. Position of the Respondent
17. The Respondent failed to reply to the claim within the stipulated deadline.
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REF FPSD-6044
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether she was competent to deal with the case at hand.
In this respect, she took note that the present matter was presented to FIFA on
13 May 2022 and submitted for decision on 13 October 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.
19. Subsequently, 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), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Montenegrin player and an Omani
club.
20. Finally, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (July 2022), and
considering that the present claim was lodged on 13 May 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Admissibility of the late reply
21. At this point, the Single Judge recalled that the Respondent failed to submit its reply to
FIFA general secretariat within the time limit granted. In this respect, she pointed to art. 21
par. 1 of the Procedural Rules and concluded the said reply cannot be considered in the
matter at hand.
c. Burden of proof
22. 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 she may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the TMS.
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d. Merits of the dispute
23. Her competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, she 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 she will refer
only to the facts, arguments and documentary evidence, which she considered pertinent
for the assessment of the matter at hand.
i. Main legal discussion and considerations
24. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the dispute concerns a termination of the
Employment Agreement for alleged overdue payables.
25. In this context, the Chamber acknowledged that it its task was to determine if the
termination by the Respondent, which occurred on 9 May 2022, was with just cause.
26. The Single Judge firstly recalled that the Respondent failed to submit its position to the
present claim. Thus, she established that, in accordance with art. 21 par. 1 of the
Procedural Rules, the allegations submitted by the Claimant would be considered as
uncontested in the present matter, and that the question whether or not the Employment
Agreement was terminated with just cause would be determined based on the
documentation present on file.
27. The Single Judge subsequently recalled that the salary of February 2022 was not fully paid,
whereas the salaries March 2022 and April 2022 were not paid at all, i.e. that the Claimant
had not been paid nearly three-monthly salaries before the Employment Agreement was
terminated on 9 May 2022.
28. Based on the evidence on file, the Single Judge concluded that the Employment
Agreement was terminated with just cause by the Claimant as the Respondent behaved
in a manner which no longer feasibly encouraged further collaboration between the two
parties.
ii. Consequences
29. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
30. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amounts to USD 26,000.
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31. 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 26,000 (i.e. the value of the contract between February 2022 until
April 2022 minus an acknowledged amount of USD 4,000).
32. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant
interest at the rate of 5% p.a. over the outstanding amounts as follows:
−
−
−
Over the amount of USD 6,000 as of 1 March 2022 until the date of the effective
payment;
Over the amount of USD 10,000 as of 1 April 2022 until the date of the effective
payment;
Over the amount of USD 10,000 as of 1 May 2022 until the date of the effective
payment.
33. 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.
34. In application of the relevant provision, the Single Judge held that she 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.
35. As a consequence, 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. She recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
36. 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,
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the Single Judge concluded that the amount of USD 130,000 (i.e. 13 times USD 10,000)
serves as the basis for the determination of the amount of compensation for breach of
contract.
37. 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 Single Judge 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.
38. Indeed, the player found employment with KF Egnatia. In accordance with the pertinent
employment contract, the player was entitled to approximately USD 1,232.17 per month.
Therefore, the Single Judge concluded that the player mitigated his damages in the total
amount of USD 12,321.7, that is, 10 times USD 1,232.17.
39. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
40. In this respect, the Single Judge decided to award the amount of additional compensation
of USD 30,000, i.e. three times the monthly remuneration of the player. However, the
Single Judge recalled art. 17 par. 1 lit. ii) of the Regulations that the “overall compensation
may never exceed the rest value of the prematurely terminated contract”, and decided that
the overall compensation must be limited to USD 130,000.
41. 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 130,000 to the player, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
42. 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 13 May 2022 until the date of effective payment.
iii. Compliance with monetary decisions
43. 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
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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.
44. In this regard, the Single 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.
45. 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 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.
46. 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.
47. 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.
e. Costs
48. 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, she decided that no procedural costs were to be
imposed on the parties.
49. 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.
50. Lastly, the Single Judge concluded her 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, Ilir Camaj, is partially accepted.
2.
The Respondent, Dhofar Club, has to pay to the Claimant, the following amount(s):
- USD 6,000 as outstanding remuneration, plus 5% interest p.a. as of 1 March 2022 until
the date of the effective payment;
- USD 10,000 as outstanding remuneration, plus 5% interest p.a. as of 1 April 2022 until
the date of the effective payment;
- USD 10,000 as outstanding remuneration, plus 5% interest p.a. as of 1 May 2022 until
the date of the effective payment;
-iUSD 130,000 as compensation for breach of contract without just cause, plus 5%
interest p.a. as of 13 May 2022 until the date of the 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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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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