Labour Disputes
Texto da decisão
REF FPSD-5688
Decision of the
Dispute Resolution Chamber
passed on 21 July 2022
regarding an employment-related dispute concerning the player Oussama
Hadadi
BY:
Frans de Weger (the Netherlands), Chairperson
Roy Vermeer (the Netherlands), member
Alejandro Atilio Taraborelli (Argentina & Italy), member
CLAIMANT / COUNTER-RESPONDENT 1:
Oussama Hadadi, Tunisia
Represented by Global Sport Consulting
RESPONDENT / COUNTER-CLAIMANT:
Yeni Malatyaspor, Turkey
Represented by Mr Burak Çakir
COUNTER-RESPONDENT 2:
SpVgg Greuther Fürth, Germany
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I. Facts of the case
1.
On 14 July 2021, the Tunisian player, Oussama Hadadi (hereinafter: the Player), and the
Turkish club, Yeni Malatyaspor (hereinafter: the Club) signed an employment contract
(hereinafter: the Contract) valid as from the date of signature until 31 May 2023.
2.
In accordance with Article 3 of the Contract, the Club undertook to pay to the Player inter
alia an annual salary of EUR 800,000, payable in ten equal monthly instalments of
EUR 80,000 by no later than the 30th day of each month from August to May every season,
as well as a seasonal bonus of EUR 60,000 payable on 15 September 2021 and
15 September 2022 respectively.
3.
Furthermore, in accordance with Article 9 of the Contract, the Player and the Club agreed
as follows:
“Disputes that may arise between the parties cannot be resolved exclusively by the FIFA Dispute
Resolution Board (DRC). Final Decision of FIFA, within 21 days from the date of the decision,
before the Court of Arbitration of Sports (CAS) can be appealed. All proceedings before the CAS
will be conducted in English.”
4.
By correspondence dated 7 January 2022, the Player put the Club in default of payment
of EUR 300,000, setting a time limit expiring on 22 January 2022 in order to remedy the
default.
5.
By correspondence dated 25 January 2022, the Player unilaterally terminated the Contract
with the Club.
6.
Following a conference call (date not specified) between the Player and the President of
the Club, the former agreed to withdraw his notification of termination with the condition
that the Club shall pay outstanding amounts until 1 March 2022.
7.
By correspondence dated 15 March 2022, the Player put the Club in default of payment
of EUR 460,000, setting a time limit expiring on 30 March 2022 in order to remedy the
default.
8.
By correspondence dated 5 April 2022, the Player unilaterally terminated the Contract
with the Club.
9.
On 14 June 2022, the Player and the German club, SpVgg Greuther Fürth (hereinafter: the
New Club) signed an employment contract (hereinafter: the New Contract) valid as from
1 July 2022 until 30 June 2024.
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10. In accordance with the New Contract, the New Club undertook to pay the Player a net
monthly remuneration of EUR 14,997.46 over the course of the New Contract.
II. Proceedings before FIFA
11. On 6 April 2022, the Player filed the claim at hand before FIFA.
12. Furthermore, on 25 May 2022, the Club lodged a counterclaim against the Player before
FIFA.
13. A brief summary of the position of the parties is detailed in continuation.
a. Position of the Player
14. According to the Player, the Club failed to pay him several salary instalments, more
specifically in the period between October 2021 and March 2022, as well as the signing
bonus which fell due on 15 September 2021.
15. Furthermore, the Player asserted having complied with the prerequisites of art. 14bis of
the Regulations on the Status and Transfer of Players by putting the Club in default of the
respective outstanding amounts and granting it a 15-day deadline to remedy the default.
16. As such, the Player argued that he terminated the Contract with just cause, and that as a
result, he is entitled to the outstanding amounts under the Contract, as well as
compensation by the Club on account of such unlawful breach by the latter.
17. The Player requested outstanding remuneration in the amount of EUR 540,000 plus
interest of 5% p.a. as from the due dates of the respective instalments until the date of
effective payment.
18. Moreover, the Player requested compensation due to breach of contract without just
cause by the Club in the amount of EUR 1,500,000, corresponding to the residual value of
the Contract in the amount of EUR 1,020,000 as from 5 April 2022, the “second
termination” date, plus additional compensation in the amount of EUR 480,000,
corresponding to six monthly salaries as a result of the egregious nature of the Club’s
conduct.
19. Lastly, the Player requested interest on any compensation awarded at the standard rate
of 5% p.a. as from 5 April 2022 until the date of effective payment.
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b. Position of the Club
20. In its counterclaim, the Club asserted that it never received the default letters dated
7 January 2022 and 15 March 2022 and that, as a result, it was never granted the requisite
15-day deadline by the Player, rendering the unilateral termination of the Contract by the
Player without just cause.
21. Moreover, the Club submitted several payment receipts towards the Player, which were,
however, not accompanied by any comments or explanation as to how this would affect
the claim of the Player.
22. As a result, the Club requested compensation in the amount of EUR 1,020,000 as a result
of the termination by the Player occurring without just cause, corresponding to the
residual value of the Contract as from 5 April 2022.
c. Position of the Player regarding the counterclaim of the Club
23. The Player rejected the counterclaim lodged by the Club entirely, arguing as follows:
24. With regards to the allegation that the Club received no default notices by the Player, the
latter argued that he sent all his correspondence, including the disputed default notices,
to the official e-mail address of the Club which was stipulated in Article 12 of the Contract:
“[email protected]”. The Player further stated that he submitted evidence in this
respect that clearly evidences the aforementioned assertion. As such, the Player argued
that the formal requirements of art. 14bis of the Regulations were formally met.
25. Furthermore, the Player argued that the proofs of payment submitted the Club were
authentic, however, they were not sufficient in undermining the fact that there were far
more than two monthly salaries outstanding at the time the Contract was terminated,
thereby maintaining that the Contract was terminated with just cause.
d. Position of the New Club regarding the counterclaim of the Club
26. The New Club submitted that it is clear that the Player terminated the Contract with just
cause, in line with art. 14bis of the Regulations and that, as a result, it cannot be held
jointly and severally liable for compensation sought via the counterclaim lodged by the
Club.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) 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 6 April 2022 and submitted
for decision on 21 July 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.
28. Subsequently, the members of the Chamber 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 (July 2022 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
Tunisian player and a Turkish club.
29. Furthermore, in accordance with art. 22 par. 1 lit. b) of the Regulations on the Status and
Transfer of Players (July 2022) edition, the Chamber observed that the Contract between
the Player and the Club did not contain a provision by way of which the parties to said
Contract explicitly opted for the dispute to be decided by another decision-making body
than the DRC.
30. 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 (July 2022), and
considering that the present claim was lodged on 6 April 2022, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
31. 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 Transfer Matching System (TMS).
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c. Merits of the dispute
32. 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 above-mentioned 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
33. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the justice of the early
termination of the Contract by the Player, based on the alleged non-payment of certain
financial obligations by the Club as per the Contract, in accordance with art. 14bis of the
Regulations.
34. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Club and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
35. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails 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).
36. The Chamber noted that the Player claims not having received his remuneration
corresponding to the period between October 2021 and March 2022. Furthermore, the
Chamber noted that the Player has provided written evidence of having put the Club in
default on 7 January 2022, i.e. at least 15 days before unilaterally terminating the Contract
on 25 January 2022.
37. On one hand, the Chamber took note of the allegation submitted by the Club that the
default notices allegedly sent by the Player were never received by the former. In this
respect, the Chamber established that the Player had provided sufficient evidence
regarding the service of the respective default notices, by including not only the letters
themselves, but also information regarding the dates and the e-mail addresses to which
said letters were sent, which indeed corresponded with the official address of the Club
stipulated under art. 12 of the Contract. Moreover, and for the sake of completeness, the
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Chamber noted that said e-mail address corresponded to the official e-mail address of
the Club entered into TMS.
38. Furthermore, as neither the Player, nor the Club provided evidence of the latter accepting
the withdrawal of the termination notice issued by the former, the Chamber considered
that the actual date of termination of the Contract by the Player was 25 January 2022, and
that both the default notice and termination letter sent subsequently on 15 March 2022
and 5 April 2022 respectively were without any effect.
39. The Chamber also noted that in the case at hand the Club bore the burden of proving that
it indeed complied with the financial terms of the Contract concluded between the
parties. Nonetheless, the evidence provided by the Club (namely the payment receipts
submitted as part of the counterclaim) were related to amounts which were not in
dispute, and therefore, did not prove beyond doubt payment of any of the amounts
claimed as outstanding by the Player.
40. In view of the aforementioned, the Chamber was able to establish that, at the time the
Player terminated the Contract, the Club had failed to pay remuneration under the
Contract in the amount of EUR 300,000, corresponding to three monthly salaries of
EUR 80,000 each, as well as the signing bonus of EUR 60,000 which was payable on
15 September 2021.
41. Thus, the Chamber concluded that the Player had a just cause to unilaterally terminate
the Contract, based on art. 14bis of the Regulations.
ii. Consequences
42. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Club.
43. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, are equivalent to three salaries
of EUR 80,000 under the Contract, for the period between October 2021 and
December 2021, as well as the signing bonus of EUR 60,000, amounting to EUR 300,000.
44. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Club is liable to pay to the Player the amounts
which were outstanding under the Contract at the moment of the termination, i.e.
EUR 300,000.
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45. In addition, 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 the
outstanding amounts as follows:
-
5% p.a. as from 16 September 2021 until the date of effective payment, payable
on the amount of EUR 60,000;
5% p.a. as from 31 October 2021 until the date of effective payment, payable
on the amount of EUR 80,000;
5% p.a. as from 1 December 2021 until the date of effective payment, payable
on the amount of EUR 80,000;
5% p.a. as from 31 December 2021 until the date of effective payment, payable
on the amount of EUR 80,000.
46. 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.
47. In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the Contract contained a provision by means of which the parties had
beforehand agreed upon an amount of compensation payable by the Player or the Club
in the event of breach of contract.
48. In this regard, the Chamber established that no such compensation clause was included
in the Contract.
49. As a consequence, the Chamber 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 Chamber recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
50. 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 1,260,000
(i.e. EUR 400,000 for the remainder of the 2021-2022 season, or 5 times EUR 80,000 for
the period between January 2022 plus May 2022 plus EUR 860,000 for the
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2022/2023 season, corresponding to 10 monthly salaries of EUR 80,000 each and the
contractually stipulated seasonal “down payment” of EUR 60,000, payable on
15 September 2022) serves as the basis for the determination of the amount of
compensation for breach of contract.
51. 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.
52. Indeed, the Player found new employment with New Club. In accordance with the New
Contract, the Player was entitled to EUR 14,997.46 per month. Furthermore, the Chamber
noted that the Contract and the New Contract, overlapped during the period of June 2022
until May 2023. Therefore, the Chamber concluded that the Player mitigated his damages
in the total amount of EUR 179,969.52, that is, 12 times EUR 14,997.54.
53. 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, or six monthly salaries in the presence of egregious
circumstances, 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.
54. Furthermore, the Chamber established that, in line with its longstanding jurisprudence,
there were no egregious circumstances in the present case.
55. In view of the foregoing, the Chamber decided to award the amount of additional
compensation of EUR 240,000, i.e. three times EUR 80,000, as the monthly remuneration
to the Player.
56. The Chamber 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.
57. 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 net amount of
EUR 1,260,000 to the Player (i.e. EUR 1,260,000 minus EUR 179,969.52 plus EUR 240,000,
limited to a maximum of EUR 179,969.52), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
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58. 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 6 April 2022, i.e. the date the claim was lodged,
until the date of effective payment.
iii. Compliance with monetary decisions
59. 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.
60. In this regard, the DRC 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.
61. Therefore, bearing in mind the above, the DRC 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.
62. 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.
63. The DRC 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
64. 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.
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65. Likewise and for the sake of completeness, 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.
66. Lastly, the DRC 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/Counter-Respondent 1, Oussama Hadadi, is admissible.
2.
The Claim of the Claimant/Counter-Respondent 1 is partially accepted.
3.
The Respondent/Counter-Claimant, Yeni Malatyaspor,
Claimant/Counter-Respondent 1, the following amount(s):
has
to
pay
to
the
- EUR 60,000 as outstanding remuneration plus 5% interest
16 September 2021 until the date of effective payment;
p.a. as from
- EUR 80,000 as outstanding remuneration plus 5% interest
31 October 2021 until the date of effective payment;
p.a. as from
- EUR 80,000 as outstanding remuneration plus 5% interest
1 December 2021 until the date of effective payment;
p.a. as from
- EUR 80,000 as outstanding remuneration plus 5% interest
31 December 2021 until the date of effective payment;
p.a. as from
- EUR 1,260,000 as compensation for breach of contract without just cause plus
5% interest p.a. as from 6 April 2022 until the date of effective payment.
▪
4.
Any further claims of the Claimant/Counter-Respondent 1 are rejected.
5.
The counterclaim of the Respondent/Counter-Claimant 1 is rejected.
6.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
7.
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 the ban
shall be of 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.
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8. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
9. 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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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