Labour Disputes
Texto da decisão
REF. FPSD-11935
Decision of the
Dispute Resolution Chamber
passed on 8 February 2024
regarding an employment-related dispute concerning
the player Sami Hammami
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Stijn BOEYKENS (Belgium), member
Andre DOS SANTOS MEGALE (Brazil), member
CLAIMANT:
Sami Hammami, Tunisia
Represented by Anis Ben Mime
RESPONDENT:
Erbil Sports Club, Iraq
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REF. FPSD-11935
I. Facts of the case
1.
The parties to the dispute are:
-
The Tunisian player, Sami Hammami (hereinafter: the Claimant or the player); and
-
The Iraqi club, Erbil Sports Club (hereinafter: the Respondent or the club).
2.
On 17 August 2023, the player sent to the club a signed copy of the document called
“employment contract” dated 5 August 2023 and valid as from 1 September 2023 until 1
July 2024 (hereinafter: contract). It is to be noted that the Respondent contested the validity
of this contract.
3.
According to the contract, the Respondent undertook to pay the Claimant a total salary of
USD 55,000, payable in 10 monthly instalments.
4.
The Respondent also undertook to provide the player with 2-way air tickets on economy
class to the player’s country.
5.
The contract contained the following signatures/stamps:
6.
By correspondence dated 17 August 2023, the player sent to the club the signed copy of
the contract and requested the flight ticket in order to join the club.
7.
On 28 August 2023, the player indicated to the club that he sent a signed copy of the
contract on 17 August 2023 and that he was waiting for the flight ticket to join the club’s
premises.
8.
On 29/30 August 2023, the club sent to the player the following message (freely translated
to English). It is to be noted that as per the documentation provided by the club, this letter
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REF. FPSD-11935
was sent on 29 August 2023 and as per the player’s documentation provided it was on 30
August 2023:
“due logistical, technical and financial reasons, we regret to inform that [the club]
are unable to officially sign the contract with the player and request the player's
international and register him in the system.
In addition, our club has been banned from registering professional and local
players, so we cannot officially register a player.
Therefore, the offer signed by the player is considered void.”
9.
On an unspecified date, the player signed an employment contract with the Saudi Arabian
club Baish valid as from 20 September 2023 until 25 March 2024, including a monthly salary
of SAR 9,640 (approx. USD 2,567.90).
II. Proceedings before FIFA
10. On 25 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
11. The Claimant lodged a claim for breach of contract. In his claim, the player argued that he
sent a signed copy of the contract on 17 August 2023, and that the club terminated the
contract without just cause via its letter dated 30 August 2023.
12. In view of the foregoing, the player requested payment of USD 65,000 as compensation for
breach of contract and to apply sporting sanctions on the Respondent.
b. Position of the Respondent
13. In its reply, the Respondent stated that it did not conclude any contract with the player but
only opened negotiations with him. In order to support this, the club stressed that the date
of the offer to the player was on 5 August 2023, same date as the final match of the Iraqi
cup which meaned that the club did not intend to conclude a contract. Moreover, the
contract was not signed by the president of the club.
14. The club further indicated that:
“FIFA regulations and even the Iraqi Football Federation regulations strictly prohibit
contracting with any player, whether national or foreign, outside the summer and winter
transfer period, and the above date was during the 2022/2023 football season.
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REF. FPSD-11935
Which confirms what we said above that [the club] was banned on August 14, 2023 from
concluding any contract with any player, whether national or foreign, and even if such was
concluded, it is not considered valid under this ban because it violates to the decision and
FIFA regulations […]”
15. The club further added, in its letter dated 29 August 2023, that it confirmed that it was not
possible to conclude a contract with the player due to the club’s ban on registering players.
This was also confirmed in the club’s view by the fact that the player did not travel to Iraq,
did not join the club and did not take part in any training sessions.
16. The club also mentioned that there was not a contract as it did not request the relevant
International Transfer Certificate (ITC) and therefore, he was not registered with the Iraqi
club, consequently, it did not comply with the requirements of registration indicated in the
FIFA regulations.
17. In view of the above the club indicated: “there is no legal basis for the Claimant/player's Claim
against our club, and therefore he has no right to claim any amount whatsoever due to the
absence of a contract concluded between them in a legal form and the failure to fulfill the due
procedures as stated in the FIFA regulations mentioned in Above, we request that the Claim be
dismissed due to its lack of validity and the absence of a valid legal contract concluded between
the Claimant/player and the Respondent/ Erbil Sports Club.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 25 September 2023 and
submitted for decision on 8 February 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.
19. 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 (February 2024 edition), the
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Tunisian player and an Iraqi
club.
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REF. FPSD-11935
20. 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 25 September 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
21. 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).
c. Merits of the dispute
22. 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
23. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the validity of the contract and its consequences were
disputed by the parties.
24. In brief, while the Claimant considered that the club terminated the contract without just
cause, the Respondent contested the validity of the contract, arguing that, it had initiated
the negotiations with the player; however, was unable to register the player due to the
registration ban imposed by FIFA, an information which was conveyed by the club to the
player in its letter sent on 29/30 August 2023.
25. Subsequently, the DRC confirmed that the main issue in the present claim is to determine
whether the contract can be considered as a valid and binding employment agreement. In
doing so, the Chamber started by recalling its well-established jurisprudence which dictates
that, in order for an employment contract to be considered as valid and binding, it should
contain the relevant essentialia negotii, such as the parties to the contract and their role,
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REF. FPSD-11935
the duration of the employment relationship and the remuneration payable by the
employer to the employee.
26. Moreover, the Chamber recalled that the signature of a contract by both parties is an
important element in order to establish an employment relationship, essentially because
this is the easiest way to demonstrate mutual consent. However, having an unsigned
specimen of the contract does not automatically mean there is no employment
relationship between the parties, because this shall be established on a case-by-case basis
and considering the entirety of the facts of the case and the elements at the disposal of the
deciding authority.
27. Finally, as to the registration of the player, the Chamber reminded the parties that, in line
with the jurisprudence of the Football Tribunal, the registration procedure is the sole
responsibility of a club, upon which a player has in general no influence. As the club is
supposedly interested in acquiring the rights of the player and in benefiting from his
services, it is also expected that it acts accordingly and executes the administrative
formalities in view of obtaining, for instance, the registration with the engaging federation.
Consequently, the Chamber confirmed that it is the obligation of the club to ensure that all
administrative formalities are met for the player to be able to play, as per the contract and
this cannot be a reason to contest the validity of the contract in line with art. 18 par. 4 of
the Regulations.
28. Considering the above, the Chamber noted that the club argued that the contract had not
been signed by its president. Yet, the DRC remarked that (a) the contract contained the
club's stamp, (b) the club did not dispute that the contract had been sent to the player and
signed by him and returned to the club signed, and (c) the club also did not dispute the
content of the contract itself. In view of the foregoing, the Chamber concluded that the
parties were not in the negotiation phase and the contract contained the elements to be
considered as valid and binding, in that the mutual consent could be established by the
engagement between the parties as outlined above.
29. Having established that a valid and binding contract existed between the parties, the
Chamber then proceeded to examine the issue of the termination. In doing so, the
Chamber recalled its long-standing jurisprudence, according to which only a breach or
misconduct which is of a certain severity justifies the termination of a contract without prior
warning. In other words, only when there are objective criteria which do not reasonably
permit to expect the 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 assure the employee’s fulfilment of his contractual
duties, such measures must be taken before terminating an employment contract. A
premature termination of an employment contract can only be an ultima ratio.
30. In the present case the Chamber noted that the club did not provide a valid justification to
terminate the contract and no ultima ratio could be established in the present matter.
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REF. FPSD-11935
Consequently, the Chamber concluded that by the club’s letter on 29/30 August 2023, it
terminated the contract without just cause.
ii. Consequences
31. 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.
32. In application of the relevant provision, the Chamber held that it 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 Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
33. As a consequence, the members of 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.
34. 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
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 55,000 serves as the basis for the determination of the
amount of compensation for breach of contract.
35. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
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REF. FPSD-11935
36. Indeed, the player found employment with the Saudi Arabian club, Baish. In accordance
with the pertinent employment contract, the player was entitled to approximately USD
2,567.92 per month. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of USD 15,407.52.
37. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations and
determined that no additional compensation should be awarded in the case at hand,
insofar as termination of the contract was not grounded on outstanding remuneration, but
rather on the overall abusive conduct of the club.
38. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 39,592.48 to the player (i.e., USD 55,000 minus USD 15,407.52), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
39. Lastly, the Chamber noted that the Claimant did not request interests, therefore, the
Chamber did not award it.
iii. Compliance with monetary decisions
40. 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.
41. 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.
42. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
43. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
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44. 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
45. 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.
46. 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.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-11935
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sami Hammami, is partially accepted.
2.
The Respondent, Erbil Sports Club, must pay to the Claimant the following amount:
- USD 39,592.48 as compensation for breach of contract without just cause.
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 Governing the Football
Tribunal).
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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