Labour Disputes
Texto da decisão
REF. FPSD-13770
Decision of the
Dispute Resolution Chamber
passed on 30 May 2024
regarding an employment-related dispute concerning
the player Giorgi Gabedava
COMPOSITION:
Lívia SILVA KÄGI (Brazil/Switzerland), Deputy Chairwoman
Iñigo RIESTRA (Mexico), member
Stella MARIS JUNCOS (Argentina), member
CLAIMANT:
Giorgi Gabedava, Georgia
Represented by Mr Serik Iklassov
RESPONDENT:
Hapoel Akko, Israel
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REF. FPSD-13770
I. Facts of the case
1.
According to the information contained in Transfer Matching System (TMS), on 1 February 2023 the
Georgian player Giorgi Gabedava (hereinafter, the Claimant or the Player) and the Israeli club Hapoel
Akko (hereinafter, the Respondent or the Club) concluded an employment contract (hereinafter, the
Contract).
2.
As per Clause 4 of the Contract,
“The term of the agreement is for one football season [2022/23] and begins on 1/2/23 and
ends on 31 May 2023”.
3.
According to Clause 6 of the Contract, the Claimant and the Respondent (hereinafter, jointly referred
to as the Parties) agreed upon the following salary:
“4 monthly salaries of 18,636 nis gross per month [equivalent to 5,000 USD net per month]”.
4.
On 1 August 2023, the Parties further concluded an “appendix to the standard players agreement”
(hereinafter, the Appendix) according to which,
“The term of the agreement is for one football season [2023/2024] and begins on 1.8.23 and
ends on 31 May 2024”.
5.
According to Clause 6 of the Appendix, the Parties agreed upon the following salary:
“Seasonal salary of __________ NIS [equivalent to 55,000 Euros gross, divided into 10 monthly
salaries of _________ NIS [equivalent to 5,500 Euros].”.
6.
According to the information contained in TMS, on 14 November 2023 the Respondent sent a default
notice to the Claimant by way of which it terminated the Contract on the following reasons:
“As you may know, an employment contract has been signed between you and the club on
07/23.
Unfortunately, since a security crisis arises in Israel on 7/10/23, which led to a temporary break
in the league, we allowed you to leave Israel upon your request, until the league returns.
A few two weeks ago, the league management announced that the league is about to reopen
on 17.11.2023.
Therefore, we contacted you and instructed you to come back to Israel and join the team.
Unfortunately, you and your agent said that you refuse to comeback and respect your contract.
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To remind that the first match of the team is taking place on this Friday 17/11/2023.
Your refusal to come back and fulfill your obligations according to the employment agreement
is a fundamental violation of the contract.
This violation causes the club sportive and economic damages.
Therefore, we hereby inform you that due to this violation, your contract with the club is
terminated.
The club keeps all his claims against you regarding this violation”.
7.
On 2 April 2024, the Claimant informed that on 1 March 2024 he signed an employment contract
(hereinafter, the New Contract) with the Georgian club FC Rustavi, valid as from the date of signature
until 10 December 2024.
8.
As per Clause 3 of the New Contract, the Claimant and FC Rustavi agreed upon the following salary:
“The monthly salary of a football player without taxes amounts to 3,778 (three thousand seven
hundred secventy eight) GEL & 44 Tetri, and the one-time contractual incentive without taxes
amounts to 20,000 (twenty thousand) GEL. The monthly payroll will be made no later than 15th
of the month following the accounting month”.
II. Proceedings before FIFA
9.
On 22 February 2024, 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
10. According to the Claimant, the Respondent never provided him with a copy of the Contract, and he
was only in possession of the Appendix.
11. The Claimant alleged that “since the outbreak of hostilities between Israel and Palestine the Club has
disbanded the team until the situation is clarified”.
12. The Claimant further argued that on 14 November 2023 the Respondent sent him a notice
summoning him to the training camp and obliging him to arrive by 17 November 2023, otherwise
the Contract would be terminated as per the contractual breaches of the Claimant.
13. The Claimant asserted that he replied to the Respondent that he could not return due to the lack of
security guarantees from the Respondent, as he was “currently fearing for my safety and here is a
military escalation. The Club cannot guarantee my safety and that of my family in this situation”.
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14. The Claimant also argued that on 8 October 2023, Israel adopted the state of emergency, “Thus, it is
recognized that a special regime has been imposed in the country due to military escalation, we believe
that this is a fact that it is unsafe to be in the country, accordingly, it is impossible to fulfil labour
obligations”.
15. The Player referred to CAS 2020/A/7065 where “according to the act of war, when Russia carried out
the invasion of Ukraine, this fact is a force majeure circumstance, or at least a situation not foreseen by
FIFA regulations”.
16. The Claimant also argued that the Club sent him a settlement agreement to sign, to which he
opposed, and by way of which he would declare having received all the agreed salary and not having
any other claims against the Respondent.
17. The Claimant alleged that “To date, without the decision of the Israeli Federation, the Club has
unilaterally terminated the Contract with the Footballer be recognised as unjustified on the part of the
Club and that the fact of military action be recognised, which does not allow for the performance, from
October 2023, of functions as a professional footballer during the continuation of the military conflict”.
18. The Player claimed that the Respondent should be ordered to pay the outstanding monthly salaries
from October 2023 to May 2024 in the amount of EUR 44,000, plus compensation for terminating
the Contract without just cause.
19. The Player requested the following relief:
1. To pay the professional footballer Gabedava G. a salary arrears of 44,000 euros;
2. To pay professional footballer Gabedava G. arrears of unused leave compensation;
3. Pay a penalty for late payment of wages and compensation in accordance with the terms
of the labour contract.
b. Position of the Respondent
20. Despite being invited to do so, the Respondent failed to reply to the claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Dispute Resolution Chamber (hereinafter, also referred to as the Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, it took note that the present
matter was presented to FIFA on 22 February 2024 and submitted for decision on 30 May 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.
22. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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), it is competent to deal
with the matter at stake, which concerns an employment-related dispute with an international
dimension between a Georgian player and an Israeli club.
23. Subsequently, the Chamber 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 (February 2024 edition), and considering that the
present claim was lodged on 22 February 2024, the February 2024 edition of said regulations
(hereinafter, the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
24. The Chamber 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 Chamber 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 TMS.
c.
Merits of the dispute
25. Its competence and the applicable regulations having been established, the Chamber entered into
the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. However, the Chamber
emphasised that in the following considerations it 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
26. The above having been established, the Chamber took note of the fact that this is a dispute of a
player against a club concerning the termination of the employment relationship by the latter and
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its subsequent consequences. The Chamber also pointed out that the claim of the Player remained
uncontested by the Club.
27. The Chamber initially took note of the fact that, even though the Player alleged that the Club had
terminated the Contract without just cause, he did not provide any evidence in this regard. On
account of this, the Chamber pointed out that it first had to be established whether any termination
had occurred and, only in such a case, whether the Contract had been terminated without just
cause, and its potential consequences.
28. Given the above, the Chamber recalled once again the contents of art. 13 par. 4 of the Procedural
Rules, pursuant to which it may consider evidence generated by or within the TMS. In particular, the
Chamber noted that, according to the information contained in TMS, on 2 April 2024 the Player was
transferred from the Respondent to the Georgian club FC Rustavi. In the context of this transfer, the
Chamber verified that the Club uploaded a termination letter addressed to the Claimant dated 14
November 2023 as the proof of termination of the employment relationship required by TMS.
29. The Chamber further noted that, according to the above-mentioned letter, the Respondent
terminated the Contract after the Player allegedly refused to return to the Club.
30. On account of the above, and particularly given the evidence contained in the TMS, the Chamber
concluded that the Club did terminate the Contract on 14 November 2023.
31. The above having been established, the Chamber acknowledged that the next question to be tackled
in the present proceedings was whether the Club had just cause to terminate the Contract.
32. In doing so, the Chamber firstly recalled the content of art. 14 par. 1 of the Regulations, in
accordance with which “A contract may be terminated by either party without consequences of any kind
(either payment of compensation or imposition of sporting sanctions) where there is just cause”.
Furthermore, the Chamber emphasized that the determination of what constitutes just cause and
whether just cause exists shall be established based on the merits of each specific case.
33. The Chamber also recalled it is a longstanding and well-established jurisprudence that only a breach
or misconduct which is of a certain severity justifies the termination of a contract, i.e., only when
there are objective criteria which do not reasonably permit to expect a continuation of the
employment relationship between the parties, a contract may be terminated prematurely. Hence, if
there are more lenient measures which can be taken in order for an employer to ensure the
employee’s fulfilment of his contractual obligations, such measures must be taken before
terminating an employment contract. A premature termination of an employment contract can only
be an ultima ratio measure.
34. Bearing the above in mind, the Chamber then turned its attention to the allegations of the Player
and noted that, as stated by himself, the Club sent him a settlement agreement dated 1 November
2023, by way of which he would declare having received all the agreed salary except the monthly
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instalment of October 2023, and not having any other claims against the Respondent. The Chamber
noted that the Player alleged he refused to sign the settlement agreement.
35. The Chamber then took note of the fact that the Player argued that on 14 November 2024, the Club
demanded his return to Israel under threat of terminating the Contract if he did not comply. The
Chamber also noted that the Player argued he refused to return due to the lack of security
guaranteed by the Respondent after the war started.
36. Lastly, the Chamber recalled that, on the same date of 14 November 2023, the Club unilaterally
terminated the Contract based on the alleged absences of the Player. In other words, the Club
unilaterally terminated the Contract on the very same day in which it requested the Player to return,
thereby depriving him of any realistic opportunity to remedy the alleged breach.
37. With the above in mind and after having carefully analysed the aforementioned sequence of events
and the submissions of the Claimant, the Chamber considered that, ultimately, the Club's decision
to unilaterally terminate the Contract appears abrupt and disproportionate, especially considering
the absence of prior warnings or efforts to resolve any potential issues.
38. In other words, the Chamber concluded that the termination of the Contract appears to have been
rushed and disproportionate, without affording the Player a fair opportunity to address any alleged
issues or breaches. The Chamber considered that the club departed from the principle of ultima
ratio, according to which the termination of a contract should be a last resort after all other
possibilities have been explored.
39. Bearing all the above considerations, the Chamber concluded that the termination of the Contract
by the Club could not be considered as an ultima ratio measure and, consequently, the Respondent
shall bear the consequences of the unlawful termination of the Contract that follow.
ii. Consequences
40. Having stated the above, the members of the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
41. In this respect, the Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, is equivalent to one monthly salary
under the Contract, amounting to EUR 5,500.
42. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Chamber 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. EUR 5,500.
43. In addition, taking into consideration the Claimant’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on
the outstanding remuneration as from 1 November 2023 until the date of effective payment.
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44. Having stated the above, the Chamber 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 Chamber 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.
45. In application of the relevant provision, the Chamber held that it 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.
46. In this regard, the Chamber established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
47. As a consequence, the Chamber determined that the amount of compensation payable by the
Respondent to the Claimant had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
48. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the
calculation of the monies payable to the Player under the terms of the Contract until its term.
Consequently, the Chamber concluded that the amount of EUR 38,500 (i.e. EUR 5,500 times seven
months) serves as the basis for the determination of the amount of compensation for breach of
contract.
49. In continuation, the Chamber 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 Chamber 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.
50. Indeed, the Player found new employment with FC Rustavi. In accordance with the pertinent
employment contract, the Player was entitled to approximately EUR 2,014 per month during the
relevant period. Therefore, the Chamber concluded that the player mitigated his damages in the
total amount of EUR 6,042, that is, EUR 2,014 multiplied by 3.
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51. Consequently, on account of all the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the Club must pay the amount of EUR 32,458 to the Player
(i.e. EUR 38,500 minus EUR 6,042), which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
52. Lastly, taking into consideration the Player’s request as well as the constant practice of the Chamber
in this regard, the latter decided to award the Player interest on said compensation at the rate of
5% p.a. as of 14 November 2023 until the date of effective payment.
iii. Compliance with monetary decisions
53. Finally, taking into account the applicable Regulations, the Chamber 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.
54. In this regard, the Chamber 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.
55. Therefore, bearing in mind the above, the Chamber 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.
56. 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.
57. The Chamber 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
58. The Chamber 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.
59. Furthermore, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and
decided that no procedural compensation shall be awarded in these proceedings.
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60. Lastly, the Chamber concluded its 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, Giorgi Gabedava, is partially accepted.
2.
The Respondent, Hapoel Akko, must pay to the Claimant the following amount(s):
- EUR 5,500 as outstanding remuneration plus 5% interest p.a. as from 1 November 2023 until the
date of effective payment.
- EUR 32,458 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 14 November 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
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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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