Labour Disputes
Texto da decisão
REF FPSD-4414
Decision of the
Dispute Resolution Chamber
passed on 6 July 2022
regarding an employment-related dispute concerning the player Ehsan Manel Farhan Haddad
BY:
Jorge Gutiérrez (Costa Rica), DRC Judge
CLAIMANT:
Ehsan Manel Farhan Haddad, Jordan
Represented by Mr Georgi Gradev & Mr Marton Kiss
RESPONDENT:
Air Force Sports Club, Iraq
REF FPSD-4414
I Facts
1. On 1 August 2021, the player Ehsan Manel Farhan Haddad and the Iraqi club, Air Force
Sports Club concluded an employment contract valid as from 20 August 2021 until 20 June
2022.
2. According to the contract, the player was entitled to the following:
“7- The financial terms
the value of the contract shall be ( 135,000$ ) payable to the player as follows:
A (40,000$ ) payable the player first payment After playing two matches of the first stage,
B ( 10550 USD$) payable a monthly salary start from 1/11/2021 to 1/07/2022 for ten months.
C (00) payable at the expiry date of this contract.”
3. The contract further stipulated the following:
“12. Fines and penalties,
A- The second party is obligated not to be absent from daily training without approval or an
acceptable excuse by paying a fine of (50,000 thousand Iraqi dinars for each day, provided that
the days of absence do not exceed (7) days. Including the termination of the concluded contract
and obligating the second party to pay the penalty clause, which is what it received from the
value of the contract, in addition to compensation in the amount of (50%) of the total contract
value.
B- The second party, in the event of its failure and abstention from any external participation,
especially participation in the Asian and Arab Championship, and for any reason, whether
satisfactory, accidental, or otherwise, except for what the club management deems appropriate,
shall pay a fine of 25% of the contract value.
D - - to avoid any business or professional activities or pursuit., that will conflict with this
performance of this duties under this contract or participate in any footballing activity not
related to the club without the written approval of the club‘
E—in the event of external contract the second party has the right to contract , The penalty clause
for terminating the contract is an amount of 40,000 $ USD, forty dollars to be pad to the first
party provided that contract Is not internal in the Iraqi league.
11- the club shall be entitled to terminate the contract before its expiring rearm by fifteen days
notice in writing for joist cause or for any reason or if the player breaches his obligations towards
the club however the club also sha'l be entitled to terminate the contract before its expiring term
without notice should any of following violation occur.
A- if the player absent without valid reason for three consecutive training sessions or for total of
seven i inconsecutive session in one season.
B-if the player is absent without valid reason for two consecutive matches or for a total of three
inconsecutive matches in one season.
c- if the player found guilty of any criminal offence or he is suspended for more than( 30 )days
by the club or IFA or AFC or FIFA or any sporting organization for doping or any other serious
infringement.”
REF FPSD-4414
4. On 20 October 2021, the Claimant sent a default notice to the Respondent: indicating the
following:
“Under Clause 7(a) of the Agreement, Air Force Sports Club must pay Mr. Farhan USD 40,000 net
“after playing two matches of the first stage.” This sum is now due and payable.
The pro-rata value of the total outstanding amount corresponds to more than two monthly
wages
(i.e., USD 135,000 / 10 months = USD 13,500 per month), which constitutes a just cause for Ehsan
Manel Farhan to terminate the Contract with Air Force Sports Club based on Article 14bis(2) RSTP.
Consequently, Air Force Sports Club has 15 days”
5. On 5 November 2021, the Claimant requested the Respondent to provide him with
evidence of payment by the end of the day.
6. On 11 November 2021, the Claimant, via his legal representative, sent a termination notice
referring to his default notice and to art. 14 bis of the Regulations, noting that “the pro-rata
value of the total outstanding amount corresponds to more than two basic monthly salaries (i.e.,
USD 135,000 net / 10 months = USD 13,500 per month)”
7. On 14 November 2021, the club replied as follows:
“We inform you of our adherence to the terms of the contract (…) with our full readiness to settle
the current financial situation between us and pay the financial dues demanded by the player in
accordance with the terms and conditions of the contract between us.
We hope that the player will return to the club’s team (…), noting that Mr. Ihsan Manial Farhan
violated more than one clause of the contract with us, such as his leaving without the club’s
consent, and also his violation of Article Eleven, paragraphs (a-b) of the contract that binds Mr.
Ihsan Farhan not to be absent from exercises without an acceptable excuse.
But we want to end this conflict amicably. Mr. Ihsan Farhan must come immediately to Baghdad,
(…) and receive his overdue financial dues within 24 hours of rejoining the team (…)”
8. On 8 February 2022, the player concluded a contract with the Jordanian club, Al Faisaly,
valid as from the date of signature until the end of the season 2022.
9. Accordingly, the player was entitled to a monthly salary of USD 1,000 (note: from February
2022 to June 2022, the player would have earned 5*1,000= USD 5,000).
10. On 28 November 2021, the player Ehsan Manel Farhan Haddad lodged a claim before FIFA
for outstanding remuneration and breach of contract without just cause and requested the
following:
- USD 50,550 net as outstanding remuneration, further detailed as follows:
o USD 40,000 net for the payment due on 1 October 2021;
o USD 10,550 net for the payment due on 2 November 2021;
- USD 84,450 net as compensation for breach of contract without just cause, plus 5%
interest p.a. as from 12 November 2021.
REF FPSD-4414
11. According to the player, he played his two first matches on 21 September 2021 and 30
September 2021.
12. On 9 January 2022, the club provided a reply to the claim.
13. In its reply, the club explained that the amount of USD 40,000 became due “after the date
of 30/09/2021 and not on 30/09/2021”.
14. The club further argued that the default notice were sent by Mr Georgi Gradev and Márton
Kiss (SILA International Lawyers), and not by the player himself, whereas their Power of
Attorney is only dated 15 November 2021.
15. The club argued that “because the US dollar was not available at the time due to the public's
failure to attend stadiums and Corona disease On 20/10/2021 (…) the Claimant was offered to
receive a check worth 58.4 million Iraqi dinars attached hereto, equivalent to [USD 40,000], but
he received to receive them”.
16. The club attached the following cheque, dated 20 October 2021 for the amount of IQD (Iraqi
dinars) 58,400,000 (a translation was also attached), but that the player refused to accept
it:
17. On 15 January 2022, the club lodged a counterclaim and requested the payment of USD
67,500 net as compensation for breach of contract without just cause.
18. According to the club, the player ceased to attend daily trainings on 6 November 2021 in
order to join his national team and subsequently left the club, in violation of clause 12 A. of
the contract.
19. The club explained that it sent a warning to the player on 13 January 2022.
20. In view of the above, the club stated that it terminated the contract on the basis of clause
11 and 12 of the contract.
21. In his replica, the Claimant considered that the counterclaim of the club is inadmissible in
the light of art. 21 par. 3 of the Procedural rules, due to the following timeline:
REF FPSD-4414
- On December 8, 2021, FIFA invited the Respondent to provide its position on the Claim “by
no later than 14 January 2022”;
-On January 9, 2022, the Respondent filed its position on the Claim. He did not submit a
counterclaim against the Claimant;
- On January 14, 2022, the time limit set by FIFA for lodging an answer expired. The
Respondent did not ask for an extension of time to file and was not granted such;
- On January 15, 2022, the Respondent filed the Counterclaim as a new claim.
22. In any event, and as to the substance, the Claimant stated that it is a general principle of
labour law that an employer is not empowered to exercise any disciplinary control, let alone
impose monetary sanctions, on a person that is no longer employed by it.
23. In addition, the club explained that it never received the check submitted by the
Respondent, and that the Respondent did not provide any evidence in this regard.
24. In any event, the Respondent considered that the amount and currency on the check (IQD
58.4 million) does not correspond with the amount and currency stipulated in the contract
(USD 40,000).
REF FPSD-4414
II 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 the Judge or Single Judge) analysed whether he was competent to deal with the case
at hand. In this respect, it took note that the present matter was presented to FIFA on 28
November 2021 and submitted for decision on 6 July 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.
2.
Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 2 of the Procedural
Rules and observed that in accordance with art. 23 par. 2 in combination with art. 22 par.
1 lit. b) of the Regulations on the Status and Transfer of Players (March 2022 edition), the
Dispute Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Jordanian player
and an Iraqi club.
3.
Subsequently, 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 Players (August 2021 edition), and
considering that the present claim was lodged on 28 November 2021, 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
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 he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
c.
Admissibility
5.
Within the context of the current proceedings, the Chamber noted the following timeline:
- On 28 November 2021, the player lodged a claim against the club.
- FIFA forwarded the claim to the respondent and granted a deadline until 14 January
2022 to reply to the claim.
- On 9 January 2022, the club provided its reply.
- On 15 January 2022, the club lodged a counterclaim against the player.
REF FPSD-4414
6.
In this respect, the Single Judge wished to refer to the parties to art. 21 par. 2 of the
Procedural rules, according to which “The respondent(s) may submit a counterclaim with their
response to the claim. A counterclaim shall have the same form as a claim and shall be
submitted within the same time limit as that for the response to the claim.” (emphasis
added)
7.
In view of the above, and although the Respondent replied within the granted time limits,
the Single Judge observed that, in accordance with art. 21 par. 2 of the Procedural Rules,
the counterclaim of the club is inadmissible.
d.
Merits of the dispute
8.
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
9.
First of all, the Single Judge noted that that the parties concluded an employment contract
valid as from 20 August 2021 until 20 June 2022, for a total remuneration of USD 135,000
payable as follows:
- USD 40,000 “after playing two matches of the first stage”;
- USD 10,550 as a monthly salary starting from 1 November 2021.
10. Subsequently, the Single Judge noted that the player lodged a claim against the club before
FIFA, arguing that, on 11 November 2021, he terminated the contract after having put the
club in default on 20 October 2021 due to an amount that corresponds to more than two
basic monthly salaries, i.e. the payment of USD 40,000 as well as his salary of October 2021.
11. On the other hand, the Single Judge noted the position of the Respondent, which
fundamentally acknowledged that it did not pay the claimed amounts, but argued that it
offered on 20 October 2021 to pay with a cheque the amount of IQD 58,400,000.
12. In this respect, the Single Judge observed that the player argued that he never received
said cheque, and that in any case the related amount is not what was stipulated in the
contract.
13. In view of the above, the Single Judge understood that the main legal issue at stake is to
establish whether the player terminated the contract with just cause.
REF FPSD-4414
14. In this regard, the Single Judge referred to art. 14 bis of the Regulations, which stipulates
that “in the case of a club unlawfully failing to pay a player at least two monthly salaries on their
due dates, the player will be deemed to have a just cause to terminate his contract, provided
that he has put the debtor club in default in writing and has granted a deadline of at least 15
days for the debtor club to fully comply with its financial obligation(s).”
15. In relation to the applicability of said provision, the Chamber confirmed that, indeed, the
player (via his duly authorized legal representative) put the club in default for a total
outstanding amount of USD 40,000, which is certainly equivalent to more than two monthly
salaries insofar the contract stipulated a total remuneration of USD 135,000. The Single
Judge noted that it is uncontroverted that the amount of USD 40,000 became due after 30
September 2021, as well as that the player granted a deadline of 15 days prior terminating
the contract on 11 November 2021.
16. As a result, the Single Judge understood that, in principle, the conditions of art. 14 bis of
the Regulations seem to be met.
17. In relation to the proposed payment via cheque of IQD 58,400,000, the Single Judge
examined the documentation on file, and considered that, under any circumstance, said
alleged cheque (which the player denies having received) does not prove that the
outstanding amounts were settled.
18. As a result, considering that the club had a debt of at least USD 40,000 (from a contractual
value of USD 135,000), the Single Judge established that the player terminated the contract
with just cause in line with art. 14 bis of the Regulations.
ii. Consequences
19. Having stated the above, the members of the Single Judge turned his attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
20. First of all, the Single Judge established that the player is entitled to his outstanding dues
until the date of termination of the contract, i.e. 11 November 2021.
21. In this regard, the Single Judge underlined, as explained above, that the amount of USD
40,000 was outstanding after 30 September 2021.
22. Moreover, and after examining the player’s petition and the documentation gathered
during the course of the investigation, the Single Judge noted that also the salary of October
2021 (due on 1 November 2021) also became outstanding, for the amount of USD 10,555.
REF FPSD-4414
23. Consequently, in strict application of the principle of pacta sunt servanda, the Single Judge
established that the Respondent has to pay to the Claimant, the total outstanding amount
of USD 50,550 (i.e. USD 40,000 + USD 10,555), as explained above.
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 he first of all had to clarify
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.
26. 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.
27. As a consequence, the Single Judge determined that the amount of compensation payable
by the Claimant to the Respondent 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.
28. 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
until its term. Consequently, the Single Judge concluded that the amount of USD 84,450
(i.e., USD 135,000 (clause 7 of the contract – USD 50,550 due prior to the termination, as
explained above) serves as the basis for the determination of the amount of compensation
for breach of contract.
29. In continuation, the Single Judge verified 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.
REF FPSD-4414
30. Indeed, the player found new employment with the Jordanian club, Al Faisaly. In accordance
with the pertinent employment contract, the player was entitled to USD 1,000 per month,
which he would earn from February 2022 to June 2022 Therefore, the Chamber concluded
that the player mitigated his damages in the total amount of USD 5,000, i.e. 5*1,000.
31. 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. In the case at hand, the Single Judge 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.
32. In this respect, the Single Judge decided to award the amount of additional compensation
of USD 31,650, i.e. 10,550*3 as the monthly remuneration of the player.
33. The Single Judge reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii)
of the Regulations, the overall compensation may never exceed the rest value of the
prematurely terminated contract.
34. Consequently, on account of all 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
84,450 to the player (i.e. corresponding to the residual value of the contract), which was to
be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
35. 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 the date of claim until the date of effective
payment.
iii. Compliance with monetary decisions
36. 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.
37. 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.
REF FPSD-4414
38. 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 creditor, 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.
39. 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.
40. 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
41. 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.
42. Furthermore, 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.
43. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-4414
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ehsan Manel Farhan Haddad, is partially accepted.
2.
The Respondent, Air Force Sports Club, has to pay to the Claimant, the following amounts:
- USD 50,550 as outstanding remuneration plus interest as follows:
- 5% interest p.a. over the amount of USD 40,000 as from 1 October 2021 until the date of effective payment;
- 5% interest p.a. over the amount of USD 10,550 as from 2 November 2021 until the date of effective payment.
- USD 84,450 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 28 November 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 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
REF FPSD-4414
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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