Labour Disputes
Texto da decisão
REF FPSD-8601
Decision of the
Dispute Resolution Chamber
passed on 1 March 2023
regarding an employment-related dispute concerning the player Šerif Hasić
BY:
Philippe Diallo (France)
CLAIMANT:
Šerif Hasić, Bosnia and Herzegovina
Represented by Tarik Trbic
RESPONDENT:
Tadamon Sour, Lebanon
REF FPSD-8601
I. Facts of the case
1.
On 19 July 2022, the Bosnian player, Šerif Hasić (hereinafter: Claimant or player) and the
Lebanese club, Tadamon Sour (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from 20 July 2022 until 20 May 2023.
2.
In accordance with art.4 of the contract, the Respondent undertook to pay the Claimant a
monthly salary of USD 2,400 and a sign on fee of USD 3,000.
3. Art. 8 of the contract, stipulated the following:
“The contract will be legal and valid after the “player” passes the medical examination.”
4.
On 22 August 2022, the Respondent sent a termination notice to the Claimant, which
stipulated the following:
“CONTRACT TERMINATION
First party: TADAMON SOUR CLUB represented by the president,Mr. Saeb Bawa
Second party: the Bosnian-Herzegovina player Mr.SERIF HASIC his passport
no:((B0638928)
Based on the eight clause of the contract signed between AL.Tadamon Sour Sports Club
and the Bosnian player Mr.Serif Hasic,which states:( this contract will be legal and valid
after the player passes the medical examination).
As it was found after conducting the necessary medical examinations that the player had
a serious knee injury (there is a tear in the posterior horn of the medial meniscus),and
based on the medical report documented by JABAL AMEL HOSPITAL , the contract with the
player was terminated.”
5.
The Claimant indicated that since termination of the contract by the Respondent, he had
joined an amateur club in the second league of Bosnia and Herzegovina.
II. Proceedings before FIFA
6.
On 17 December 2022, 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
7.
In his claim, the Claimant argued that the Respondent terminated the contract without just
cause.
REF FPSD-8601
8.
In this context the Claimant indicated that “allegations about poor health of the player
presented by the club in the “Contract termination” are not true. The player passed his medical
test, contributed in training and played friendly games without any health problems.”
9.
The Claimant further mentioned that “at no time did he show any behaviour which would have
constituted a violation of the terms of the employment contract justifying the premature
termination of the contract. The only reason for such termination are the financial difficulties
claimed by the club.”
10. The requests for relief of the Claimant, were that the Respondent pay him:
(a) USD 5 400 as outstanding remuneration, plus 5% interest p.a. as from the relevant payment
dates until the date of effective payment
(b) 1 return ticket to and from Bosnia and Herzegovina, which must be calculated by FIFATravel.
(c) USD 21 600 as the amount due as compensation for breach of contract + 5% interest as from
22 August 2022 until the date of effective payment
(d) EUR 14 400 as an additional compensation + 5% interest as from 26 January 2022 until the date
of effective payment
(e) EUR 3 000 as legal costs
b. Position of the Respondent
11. Notwithstanding the fact that the Respondent was invited to provide its position to the
Claimant’s claim it failed to do so.
REF FPSD-8601
III. 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 Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 17 December
2022 and submitted for decision on 1 March 2023. Taking into account the wording of art.
34 of the October 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.
2.
Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players October 2022 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Bosnian player and a Lebanese 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 (October 2022 edition),
and considering that the present claim was lodged on 17 December 2022, the October 2022
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. Merits of the dispute
5.
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.
REF FPSD-8601
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the Respondent had prematurely terminated the
contract without just cause on 22 August 2022.
7.
In this context, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the parties, whether the Respondent had a valid justification for
terminating the contract on 22 August 2022.
8.
Subsequently, the Single Judge noted that – after having been provided with the claim of
the Claimant – the Respondent failed to present its response. By not presenting its position
to the claim, the Single Judge was of the opinion that the Respondent renounced its right
of defence and, thus, accepted the allegations of the Claimant.
9.
Furthermore, as a consequence of the aforementioned consideration, the Single Judge
expressed that he shall take a decision upon the basis of the documentation already on
file; in other words, upon the statements and documents presented by the Claimant.
10. In this respect, the Single Judge noted that in accordance with the termination notice issued
by the Respondent, the reasoning provided for termination of the contract was on the basis
of art. 8 of the contract, which stipulates that, “the contract will be legal and valid after the
“player” passes the medical examination.”
11. In this context, the Single Judge made reference to the clear and explicit wording of art. 18
par. 4 of the Regulations, according to which, inter alia, the validity of an employment
contract cannot be made subject to a successful medical examination. Referring also to the
obligation of the parties to maintain contractual stability, the Single Judge underlined that
a club willing to engage a specific player should perform any medical examination prior to
concluding any employment contract with the player. Any contractual provision contrary
to art. 18 par. 4 of the Regulations shall be considered as invalid.
12. Based on the foregoing, the Single Judge concluded that the Respondent terminated the
contract on 22 August 2022 without just cause and that the Respondent is to be held liable
for the consequences thereof.
ii. Consequences
13. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
14. Consequently, the Single Judge decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration in the amount of USD 5,400.
REF FPSD-8601
15. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above
amount from date of termination of the contract i.e., 22 August 2022 until the date of
effective payment.
16. Additionally, the Single Judge decided that the player is also entitled to a one-way flight
ticket from Lebanon to Bosnia and Herzegovina, the value of which was determined by FIFA
Travel at USD 580.
17. 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.
18. In application of the relevant provision, the Single Judge held that he first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
19. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set out
in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
20. 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
from the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of USD 21,600 [i.e., the residual value of the contract
September 2022 until May 2023 (USD 2,400 per month x 9] serves as the basis for the
determination of the amount of compensation for breach of contract.
21. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
REF FPSD-8601
22. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in
case the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
23. 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 did not took place due to the said reason, i.e., overdue payables by the club,
and therefore decided that the player shall not receive additional compensation.
24. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of USD 21,600, i.e., EUR 2,400 times 9, as the residual value of the
contract.
25. 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 22 August 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
26. The Single Judge confirmed that the consequences for failure to pay relevant amounts in
due time envisaged by art. 24 of the Regulations were excluded in the present matter, and
that should the Respondent fail to timely comply with this decision, it would be for the FIFA
Disciplinary Committee to adopt the necessary measures in accordance with the FIFA
Disciplinary Code.
d. Costs
27. 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.
28. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
29. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-8601
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Šerif Hasić, is partially accepted.
2.
The Respondent, Tadamon Sour, has to pay to the Claimant, the following amount(s):
- USD 5,400 as outstanding remuneration plus 5% interest p.a. as from 22 August 2022
until the date of effective payment
- USD 580 as flight cost
- USD 21,600 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 22 August 2022 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-8601
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).
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