Labour Disputes
Texto da decisão
REF. FPSD-13666
Decision of the
Dispute Resolution Chamber
passed on 20 March 2024
regarding an employment-related dispute concerning the player Khader Taha
Mustafa Elhaj
BY:
Sihon Gauci, Malta
CLAIMANT:
Khader Taha Mustafa Elhaj, Jordan
Represented by Emad Hanayneh
RESPONDENT:
Balata Youth Center, Palestine
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REF. FPSD-13666
I. Facts of the case
1.
On 20 June 2023, the player from Jordan Khader Taha Mustafa Elhaj (hereinafter: the
Player or the Claimant) and club from Palestine Balata Youth Center (hereinafter: the
Club or the Respondent) concluded an employment contract valid as from 10 July 2023
until 30 May 2024 (hereinafter: the Employment Contract).
2.
According to clause 4 of the Employment Contract, the Club undertook to pay to the Player
inter alia the following amounts:
•
•
JOD 7,000 as sign-on fee; and
JOD 1,800 as monthly salary, payable by the end of each month.
3.
On 11 January 2024, the Player put the Club in default for payment of JOD 9,000
corresponding to his salaries from July until December 2023. Furthermore, the Player
stated as follows: “If [the Club] does not pay the player’s dues within 15 days, we will consider
that the contract has been terminated in accordance with the Regulations of the Fédération
Internationale de Football Association (FIFA). We will file a complaint before FIFA to asking for all
of the player’s financial rights and request the imposition of sanctions on the club”.
4.
The Player informed that he remained unemployed following the termination of the
Employment Contract.
II. Proceedings before FIFA
5.
On 11 February 2024, the Player filed the claim at hand before FIFA.
6.
In his claim, the Player alleged that the Club failed to comply with its financial obligations
under the Employment Contract, hence giving cause to the premature termination on 27
January 2024 (cf. art. 14bis of the FIFA Regulations on the Status and Transfer of Players).
7.
Given the above, the Player requested to be awarded:
•
JOD 9,000 as outstanding remuneration, corresponding to the salaries from July
until January 2024;
•
JOD 9,000 as compensation for breach of contract, corresponding to the residual
value of the Employment Contract;
•
JOD 10,800 as additional compensation, corresponding to six monthly salaries;
•
5% interest over the abovementioned amounts as from the respective due dates.
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REF. FPSD-13666
8.
The Club failed to reply to the claim within the deadline set by the FIFA general secretariat,
despite being invited to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
9.
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 11 February
2024 and submitted for decision on 20 March 2024. Taking into account the wording of art.
34 of the March 2023 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.
10. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (February 2024 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 player from
Jordan and a club from Palestine.
11. Subsequently, 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 (February 2024 edition)
and considering that the present claim was lodged on 1 February 2024, the cited edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
12. 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 FIFA Transfer Matching System (TMS).
c. Merits of the dispute
13. The 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
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REF. FPSD-13666
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
14. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that it pertains to a claim for outstanding remuneration
and compensation for breach of contract lodged by the Player against the Club in
connection to the employment relationship previously maintained between them.
15. The Single Judge took into account that the Club, for its part, failed to present its response
to the claim of the Player, in spite of having been invited to do so. As such, she considered
that the Club renounced its right to defence and thus accepted the allegations of the Player.
The Single Judge equally confirmed that she should make her decision on the basis of the
evidence and argumentation presented by the Player in line with art. 14 par. 1 of the
Procedural Rules.
16. As a departure point, the Single Judge acknowledged that the Player was registered by the
Club in the TMS as an amateur – which could potentially lead to discussions as to status of
the Player as a professional footballer. Nevertheless, she decided that, as no explanation
was provided by the Club to this extent, and, in any event, the amount earned by the Player
under the Employment Contract appeared to be higher than the expenses effectively
incurred for his footballing activities (cf. art. 2, par. 2 of the Regulations), he shall be
considered as a professional.
17. In continuation, the Single Judge acknowledged that at the time the Player put the Club in
default six of his monthly salaries were outstanding, from July until December 2023.
Furthermore, the Player granted the Club with a reasonable deadline (i.e., 15 days) in order
to remedy its breach, to no avail.
18. As per the solid jurisprudence of the Dispute Resolution Chamber, the Single Judge
established that such persistent and substantial non-compliance of the contractual
obligations by the Club could justify the unilateral termination of the Employment Contract
as well as it could hold the Club liable for breach of contract. By the same token and
because the Club failed to reply to the claim, the Single Judge outlined that there was no
further element to be analysed in the context of the parties’ employment relationship and
– in particular – its termination.
19. In conclusion, the Single Judge decided that the Player had just cause to terminate the
Employment Contract in line with art. 14bis of the Regulations.
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REF. FPSD-13666
ii. Consequences
20. 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 Club.
21. She initially observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, is equivalent to 7 monthly salaries
under the Employment Contract (i.e., from July 2023 until January 2024).
22. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Club is liable to pay to the Player the abovementioned
salaries, i.e. JOD 12,600 (i.e. 7 times JOD 1,800).
23. In addition, taking into consideration the Player’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Player interest
at the rate of 5% p.a. on the outstanding amounts as from each respective due date until
the date of effective payment.
24. 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.
25. 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.
26. 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 non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
27. 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
Employment Contract from the date of its unilateral termination until its end date.
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REF. FPSD-13666
Consequently, the Single Judge concluded that the amount of JOD 7,200 (i.e., the salaries
from February until May 2024 à JOD 1,800 each) serves as the basis for the determination
of the amount of compensation for breach of contract.
28. 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 Football Tribunal 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.
29. Indeed, the Single Judge acknowledged that the Player remained unemployed following the
termination of the Employment Contract, hence was not able to mitigate the damages.
30. Subsequently, the Single Judge 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, and provided that said player has been able to mitigate his
damages. In the case at hand, the Single Judge confirmed that the Employment Contract
termination took place due to said reason i.e., overdue payables by the Club, but since
there was no mitigation, the Player shall receive no additional compensation – as in any
event said compensation cannot exceed the residual value of the Employment Contract.
31. 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 JOD 7,200 to the Player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
32. Lastly, taking into consideration the Player’s request as well as the constant practice of the
Football Tribunal in this regard, the Single Judge decided to award him interest on said
compensation at the rate of 5% p.a. as of 27 January 2024 until the date of effective
payment.
iii. Compliance with monetary decisions
33. 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.
34. 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
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REF. FPSD-13666
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.
35. Therefore, bearing in mind the above, the Single Judge decided that the Club must pay the
full amount due (including all applicable interest) to the Player within 45 days of notification
of the decision, failing which, at the request of the Player, 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 Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
36. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
37. 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
38. 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.
39. 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.
40. Lastly, the Single Judge rejected any other requests for relief made by any of the parties.
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REF. FPSD-13666
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Khader Taha Mustafa Elhaj, is partially accepted.
2.
The Respondent, Balata Youth Center, must pay to the Claimant the following amount(s):
- JOD 1,800 as outstanding remuneration plus 5% interest p.a. as from 1 August 2023
until the date of effective payment;
- JOD 1,800 as outstanding remuneration plus 5% interest p.a. as from 1 September 2023
until the date of effective payment;
- JOD 1,800 as outstanding remuneration plus 5% interest p.a. as from 1 October 2023
until the date of effective payment;
- JOD 1,800 as outstanding remuneration plus 5% interest p.a. as from 1 November 2023
until the date of effective payment;
- JOD 1,800 as outstanding remuneration plus 5% interest p.a. as from 1 December 2023
until the date of effective payment;
- JOD 1,800 as outstanding remuneration plus 5% interest p.a. as from 1 January 2024
until the date of effective payment;
- JOD 1,800 as outstanding remuneration plus 5% interest p.a. as from 27 January 2024
until the date of effective payment; and
- JOD 7,200 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 27 January 2024 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 of the ban shall
be of up to three entire and consecutive registration periods.
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REF. FPSD-13666
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-13666
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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