Labour Disputes
Texto da decisão
REF FPSD-5135
Decision of the
Dispute Resolution Chamber
passed on 18 March 2022
regarding an employment-related dispute concerning the player
Samer Emad El Dain Khankan
BY:
Johan van Gaalen (South Africa)
CLAIMANT:
Samer Emad El Dain Khankan, Syria
Represented by Emad Yacoub Hanayneh
RESPONDENT:
Al Shabab Club, Bahrain
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REF FPSD-5135
I.
Facts of the case
1.
On 3 August 2021, the Syrian player Samer Emad El Dain Khankan (hereinafter the Claimant or the
player) and the Bahraini club Al Shabab Club (hereinafter the Respondent or the Club) concluded
an employment agreement (hereinafter the Employment Agreement), valid as from 3 August 2021
until 15 June 2022.
2.
According to the information in Transfer Matching System (TMS), the Claimant was with the
Respondent on loan from the Syrian club, Al Ittihad.
3.
In Clause 2 of the Employment Agreement, the Claimant and the Respondent (jointly referred to
as the Parties) agreed upon, inter alia, the following terms:
"1-The total Contract value is$ 23,000.
2-A contract provider of$ 1,000 or its equivalent in Bahraini Dinars 378,000 upon signing the
contract
3- The first party obligated to pay an amount of 22000 dollars or its equivalent in Bahraini
dinars, eight hundred and thirty-two dinars (832,000) as a monthly salary."
4.
In Clause 7 of the Employment Agreement, the Parties stipulated the following termination clause:
“The contract shall end by the expiry of its duration or at any time by mutual agreement of both
parties under settlement of financial, administrative and technical aspects provided that the
player shall be removed from the record of the Bahrain Football Federation once the relation is
over between the first, second and third parties.
The value of penal condition shall be You will be paid two months' salary on bother parties and
the party who desires to end the contract shall pay the penal condition and 50% of the amount
to third party.
The above shall be without prejudice to the rights of the second party under this contract.
If any clause in the agreement is not compatible with the rules and regulation of Bahrain
Football Federation and FIFA, it shall be cancelled, and the remaining clauses shall be in force.”
5.
In Clause 8 of the Employment Agreement, the Parties included the following provision:
“The two parties (player & club) agree to appoint the Federation to arbitrate between them
and the Federation may appoint an arbitrator to settle any dispute between them and the
decision issued by the arbitrator shall be final and binding on both parties. The two parties may
refer the dispute to the International Federation to settle the dispute or to the competent courts
of the Kingdom of Bahrain.”
6.
On 25 December 2021, the Respondent terminated the contract with the Claimant. In the said
termination notice, the Respondent provided the player with the following reasons:
“1. Performance was not satisfactory and does not add to the team in terms of technique in the
required capacity.
2. Being late for the first team morning exercise and delaying all the professional players.
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3. Recurring problems at residence
4. Misuse of the club car, damage it and not taking care of it.
5. Being very late to the time of an official match for the team in the Federation Cup against
East Riffa, leading to your exclusion from the lineup for the match and enforcing the regulations
in the club which stipulates for deducing 25% of your salary.
6. Prior warning was issued to you for misconduct and recurring warning in the field.
7. We hope to reach an amicable separation because that would benefit both sides and you can
benefit from the winter transfer window to transfer to any club or return to your original club.
In conclusion, we thank you for your efforts in the previous stage, and we wish you luck in your
future endeavors”.
7.
On 31 December 2021, the Respondent reiterated that the Employment Agreement is terminated
as of 25 December 2021.
8.
On 2 January 2022, the Respondent sent an email to the Claimant, requesting the latter to officially
terminate the contract by a mutual consent, by making a payment of two monthly salaries and
organizing a flight ticket.
9.
By an email of 13 January 2022, the Claimant refused to sign an amicable settlement, pointing to
the fact that the Respondent terminated the Employment Agreement without just cause, entitling
him to the residual value of the contract.
10. In accordance with TMS, the Claimant returned to his “home” club Al Ittihad on 31 January 2021.
11. On 17 January 2022, the Claimant signed a new employment agreement (hereinafter the
Employment Agreement) with the Syrian club Hutteen, valid as from 17 January 2021 until
1 June 2022.
12. In Clause 3 of the New Employment Agreement, the Parties agreed upon the following financial
terms:
“1. The First Party shall pay the Second Party a monthly salary of (1250000 SYP), one million
two hundred and fifty thousand Syrian Pounds only, at the end of each Gregorian month, from
01/03/2022 until 01/06/2022 (four months)
2. The First Party shall pay the Second Party a housing allowance od (500000 SYP), five thousand
Syrian Pounds only, at the end of each month and for four months.”
13. In accordance with the above, the Claimant was entitled to four monthly salaries amounting to
SYP 1,750,000 (i.e. USD 3,412.5). The total value of the contract therefore amounts to USD 13,650.
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II. Proceedings before FIFA
14. On 12 February 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
15. The requests for relief of the Claimant, was the following:
“A - Six months of compensation until the end of the contract duration value of 13200 USD.
B - A mitigated compensation of the three months the amount of 6600 USD.
C - According to the above the total amounts are eighteen thousand eight hundred (19800)
USD.
D - To pay an interest from the due date of the above-mentioned amounts.”
16. The Claimant argued that the Respondent terminated the Employment Agreement without just
cause and requested the compensation in accordance with art. 17 of the Regulations.
b. Position of the Respondent
17. The Respondent rejected the claim of the Claimant as it argued that the “Player has not completed
his obligation as per Article 3 para 7 & thus he has been warned & informed vide letter Dec 25,
2021. No explanation or response received from the player”.
18. The Respondent further argued that the Claimant “refused to accept the termination with mutual
consent & left the country during 2021 without acquiring the written approval of the Clubs
President / General Secretary / authorized person.”
19. Finally, the Respondent believed that the reasons for termination mentioned in the letter of 25
December 2021 give “adequate & fair cause of contract termination” and that whereas the
Claimant “claimed for financial compensation of (6+3) nine months' salary i.e. USD 19, 800/-, It is
not as per the contract signed between the two parties on August 3, 2021 until June 15, 2022” and
that it has offered to pay two monthly salaries for December 2021 and January 2022.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also 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 12 February 2022 and submitted
for decision on 18 May 2022. Taking into account the wording of art. 34 of the October 2021
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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21. 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 (March 2022 edition), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a Syrian
player and a Bahraini club.
22. Finally, 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 Player (March 2022 edition) and considering that the
present claim was lodged on 12 February 2022, the August 2021 edition of said regulations
(hereinafter the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
23. 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
24. 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
25. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the fact that the Parties strongly dispute if the club had just cause to terminate
the Employment Agreement with the player.
26. First of all, the Single Judge recalled that, in line with the well-stablished jurisprudence of the DRC,
a termination of a contract is only an ultima ratio measure, i.e. it can be taken only in cases of
repeated and grave incidents, which, under the circumstances, would still require that the
Claimant be warned beforehand, of the eventual consequences of the actions, if they were to be
repeated. The immediate termination without prior notice can only be accepted under very
limited circumstances and warrants gross misconduct on the side of the employee.
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27. At this point, the Single Judge recalled that the Respondent terminated the employment due to
Claimant’s “unsatisfactory performance”, “misuse of car”, “being late”.
28. First of all, with regard to the alleged “unsatisfactory performance”, the Single Judge referred to
the well-established jurisprudence, according to which an alleged poor performance of a player
could not justify a premature termination of an employment contract by a club as the assessment
of the performance of a player is a subjective perception which could not be measured on an
objective scale and therefore, has to be considered as inadmissible grounds for premature
termination of an employment contract.
29. Furthermore, concerning the other alleged incidents, the Single Judge referred to art. 13 par. 5 of
the Procedural Rules, according to which a party that asserts a fact has the burden of proving it
and went on to analyse the documentation provided by the parties in support of their allegations.
In this respect, the Single Judge noted that the Respondent failed to provide any evidence of the
alleged incidents.
30. What is more, the Single Judge recalled the arguments of the Respondent that it warned the
Claimant in a letter of 25 December 2021. After a due analysis of the said letter, the Single Judge
however concluded that the Respondent actually terminated the Employment Agreement on the
said date.
31. Evaluating the evidence on file and taking into account the above as well as that the alleged
incidents immediately led to the termination of the contract by the Respondent, i.e. without any
prior warning, the Single Judge concluded that the such incidents, if at all proven, do not meet the
threshold of art. 14 of the Regulations and, consequently, that the termination of the contract is
not to be considered an ultima ratio measure.
32. In conclusion, the Single Judge therefore deemed that the Respondent had terminated the
contract with the Claimant without just cause on 21 December 2021 and is to be held liable for
the consequences thereof.
ii. Consequences
33. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
34. First of all, the Single Judge then observed that it remained undisputed by the Parties that that
there were no outstanding at the date of the decision.
35. 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, he 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
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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.
36. 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.
37. In this regard, the Single Judge took note of the wording of Clause 7 of the Employment
Agreement, which established that “[t]he value of penal condition shall be You will be paid two
months' salary on bother parties and the party who desires to end the contract shall pay the penal
condition and 50% of the amount to third party” (emphasis added).
38. After analysing the content of the aforementioned clause, the Single Judge concluded that this
clause shall not apply as the “penal condition” is unclear as to the consequences and therefore
uncertain.
39. In view of the above, the Single Judge concluded that the clause could not be considered for
establishing the amount of compensation payable to the club by the player.
40. 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. The Single Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
41. 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 13,200 (i.e. the residual value of the contract) serves as the basis for the
determination of the amount of compensation for breach of contract.
42. 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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43.
Indeed, the player found employment with Hutteen Club. In this respect, the Single Judge then
established that the value of the New Employment Agreement for the pertinent period
amounted to USD 13,650. Therefore, he concluded that the player mitigated his damages in the
total amount USD 13,650.
44.
Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Single Judge concluded that the player fully mitigated his damages
(i.e. USD 13,200 minus USD 13,650), and, consequently, no compensation is payable by the club.
45.
In view of the above, the Single Judge rejected the claim of the Claimant.
d. Costs
46. 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, he decided that no procedural costs were to be imposed on the parties.
47. 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.
48. Lastly, the Single Judge concluded his 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, Samer Emad El Dain Khankan, is admissible.
2.
The claim of the Claimant, Samer Emad El Dain Khankan, is rejected.
3.
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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