Labour Disputes
Texto da decisão
REF FPSD-6683
Decision of the
Dispute Resolution Chamber
passed on 10 August 2022
regarding an employment-related dispute concerning the player Ezekiel
Isoken Henty
BY:
Daan DE JONG (The Netherlands)
CLAIMANT:
Ezekiel Isoken Henty, Nigeria
Represented by Antonio Quintero, Elena Mundaray, and Gustavo
Mijares
RESPONDENT:
Al Hazem, Saudi Arabia
Represented by R&A Sports Law
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REF FPSD-6683
I. Facts of the case
1.
On 16 January 2021, the Nigerian player, Mr Ezekiel Isoken Henty (hereinafter: the player
or the Claimant), and the Saudi club, Al Hazem (hereinafter: the club or the Respondent),
concluded an employment contract valid as from the date of signature until 31 May 2022
(hereinafter: the employment contract).
2.
In accordance with article 5 of the employment contract, the club undertook to pay the
player a monthly salary of USD 100,000 net, by the last day of each month.
3.
Moreover, article 8 of the employment contract read as follows:
“Article 8. Disciplinary Sanctions.
1. In the event that the player commits a violation of any of his obligations under this
Contract or the applicable regulations, the club may impose disciplinary sanctions
against the player. The club shall dully charge the player and shall notify him in writing
of the details of such charges. The player shall be provided with an opportunity to
respond to the charges. In particular the player declares that he is aware of the
applicable SAFF regulations, including the Players’ Status Regulations and the
Disciplinary and Ethics Regulations (which are freely available on the official SAFF
website).
2. In the event that the player fails to fulfil his obligations under this contract, the club may
impose one or more of the following sanctions against the player in accordance with the
club’s disciplinary rules:
(a) a written warning;
(b) a reprimand;
(c) a fine; and/or
(d) community football service.
3. Fines for minor offences which are imposed by the club on the same day as the offence
may not exceed the amount corresponding to one (1) day of the fixed monthly
remuneration payable to the player (the amount to be calculated by dividing the
monthly salary by 30) under the terms of the Article 5.1 of this contract.
4. Under no circumstance shall the club sanction the player for the poor performance of
the team and/or alleged poor play.
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REF FPSD-6683
5. The club shall not impose a fine on the player if the club has not complied with its own
financial obligations towards the player under the terms and conditions of this contract.
6. In choosing and levying a sanction, the club shall take into account all circumstances of
the case. The club shall notify the player in writing at least 14 days prior to the hearing.
The player may be represented in disciplinary proceedings by a person (of any
nationality) authorised by the player for that purpose.
7. The club recognises that if the sanction consists of a fine, and such fine is deducted by
the club from the player’s salary, the player is entitled to file a claim at the FIFA DRC to
assess the legitimacy of the fine”.
4.
On 6 February 2022, the club sent the player copies of its disciplinary regulations in Arabic
and in English (hereinafter: the Disciplinary Regulations).
5.
Article 10 of the Disciplinary Regulations read as follows:
“Article 10. Kinds of Sanctions
The sanctions that must be applied on the professional player are:
10/1 Pay attention: it is a official written notification sent to the violator remining him with
the essence of the list of professionalism and Players’ Status and the list of penalties and
sanctions in the club and the contract signed with him and the unhappiness of the violation
he committed.
10/2 The written warning: is an official notification sent to the violator clarifying to him the
kind of violation he committed and warning him with the possibility to apply the maximum
sanction on him in case the continuance or repetition of the violation.
10/3 Deduction for the salary: is deducting a specific rate from the monthly salary of the
player.
10/4 Prohibition to practice: it is the sanctions stipulated in article (51) of the list of
professionalism and Player’s Status of the SAFF”.
6.
Additionally, the “List of Penalties of Sanctions” included in the Disciplinary Regulations
read inter alia as follows:
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Second: the sanction related to the player’s misconduct
S
1
2
3
4
5
6
7
8
9
10
Kind of violation
The player is sanctioned gradually according to the numeric
graduation [taking into account] article fifteen that permits
to the club to apply the highest sanction is necessary
1
2
3
Not following the prepared medical
treatment
Not cooperating with the players
properly
Conflicting the regulation of the club
Leaving the stadium during the
trainings without permission from the
director of the team
Leaving the camp without a permission
of the director of the team
Not complying with the programs of the
coach
Neglecting and not preserving the
public health
Not preserving the perfect weight fixed
by the doctor of the team
Not coming back with the team after
the match without a previous consent
from the supervisor of the team or from
the director of the team
Leaving the bench after consuming the
changes and during the match without
previous consent from the supervisor of
the team or from the director of the
team
Issue a pay
attention or a
written warning
Deduction of no
more than 15%
from the monthly
salary for a period
of no more than
one month
Deduction of no
more than 40%
from the
monthly salary
for a period of
no less than one
month and no
more than two
months
[…]
18
19
20
21
22
Misbehaving with the technical, the
administration or the medical staff or
the supporters inside or outside the
stadium
Playing outside the club (sic) in the that
are not authorized
Criticizing the referees or the technical
staff or the medical and administrative
staff or his teammates through
different means of media
Not committing to wear the specific
training outfits (sport suit, sneaker) or
the special outfits of travel with the
team or the special outfits to go from
and to the hotel
Not maintaining the time getting into
the aircraft or the bus in case of
internal or external participation
Issue a pay
attention or a
written warning
Deduction of no
more than 15%
from the monthly
salary for a period
of no more than
one month
Deduction of no
more than 40%
from the monthly
salary for a period
of no less than one
month and no
more than two
months
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REF FPSD-6683
7.
On 6 June 2022, the club served the player with a letter dated 4 June 2022, with inter alia
the following content:
“due to your misbehaving with the technical staff in training before the match of [the club] in
Thursday (26/05/2022) according to the report of the director team Mr Zuhar (attached) and
cause its like a penalty belong to the typical list of penalties and sanction to the clubs that
apply professionalism in the second statement (the sanction related to the players’
misconduct). So we are aiming to hear your reply for the above”.
8.
Attached to the abovementioned letter there was a report signed by the team’s manager.
Accordingly to said report, the player had showed a “strong objection to the assistant coach
in front of all the players inside the field, than he started to acting like non professional player
and he didn’t do what the technical staff request from him, also after his discussions with the
technical staff he raised his hands up like he refused to do what have been requested from
him”.
9.
Moreover, the report stressed that the player had already been warned against previous
behaviors but he “didn’t respect the management, technical staff and his teammates”.
Therefore, said manager requested a fine to be imposed on the player.
10. On 8 June 2022, the club notified the player the following, in verbis:
“Due to your misbehaving with the technical staff in training on 26 May 2022 and you didn’t
answer to our questioning sent in 04 [June] 2022.
And according to the list of violations and penalties provided by the disciplinary regulation
especially point B-18 (irregularities of misconduct), and given the sensitivity of the time of the
violation (before one day from official match), and also your act begore one week from this
sanction with the doctor of the club, which allows to the club to apply a high sanction as the
regulation stipulated. It has been decided to deduct (25%) from your salary of May 2022.
We also inform you of your right to appeal according to articles 21, 22 and 23 of the
disciplinary regulation”.
11. On 21 June 2022, the player put the club in default and granted it a 10 days’ deadline to
pay USD 100,000 corresponding to his salary of May 2022.
12. On 23 June 2022, the player sent the club a reminder of his outstanding salary.
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II. Proceedings before FIFA
13. On 11 July 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the player
14. In his claim, the player explained that the club failed to pay his salary of May 2022 and
should be liable to do so in line with art. 12bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP).
15. Furthermore, the player referred to the disciplinary fine imposed by the club in June 2022.
In this respect, he is of the opinion that, in verbis:
“a) There is no evidence that the Player has committed any offence.
b) The Club cannot fine the Player after the contract expired.
c) Even if the Club could fine the Player after the contract expired, any fine without
fulfilling their financial obligations towards the Player would violate the contract. Clause
8.5 stated that: "the Club shall impose a fine on the Player if the Club has not complied
with its financial obligations towards the Player under the term and conditions of this
Contract". Therefore, the Club cannot impose fines if they do not have paid their salary.
d) Even if the Club could fine the Player after the contract expired, the regulations sent
to the Player were in Arabic. Thus, the Player could not understand them.
e) Even if the Club could fine the Player after the contract expired, a fine of USD 25.000
for allegedly complaining about an exercise is just ridiculous. A fine of this magnitude is
greatly disproportional to the Player allege behavior compared to a warning that suited
more if the alleged fact was real”.
16. In light of the above, he requested to be awarded USD 100,000, and the club to be
sanction as per art. 12bis of the FIFA RSTP.
b. Reply of the club
17. On 15 July 2022, the club filed its reply to the player’s claim.
18. Accordingly, the club acknowledged that the salary of May 2022 was not paid to the player
but argued that the fine of USD 25,000 “became final and binding”, hence should be
confirmed, entailing that the player should only be entitled to receive the balance of USD
75,000.
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19. The club also pointed out that: (i) the player was provided with the English version of the
Disciplinary Regulations, therefore he cannot claim his ignorance; (ii) the disciplinary ritus
established in cited regulations was fully complied with; and (iii) the player failed to submit
his reply in the disciplinary proceedings in spite of being invited to do so.
20. Based on the foregoing, the club asked the FIFA Dispute Resolution Chamber (DRC) “to
decide that the club owed the player only 75000 USD”.
c. Additional comments of the player
21. On 19 July 2022, the player filed additional comments on the matter at hand and entirely
reiterated his argumentation as to the invalidity of the disciplinary fine.
d. Additional comments of the club
22. For the sake of good procedural order and bearing in mind the additional comments of
the player dated 19 July 2022, the club was invited to submit its final comments on the
matter but failed to do so within the deadline granted by the FIFA general secretariat.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 11 July 2022
and submitted for decision on 10 August 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.
24. 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 par. 1 lit. b) of
the RSTP (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 Nigerian player and a Saudi club.
25. 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 RSTP (July 2022 edition), and considering that the present claim was lodged
on 11 July 2022, the aforementioned edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
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b. Burden of proof
26. 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
27. The 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
28. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the case at hand pertains to a claim for outstanding
remuneration only, corresponding to the player’s salary of May 2022.
29. The Single Judge observed that it remained undisputed between the parties that the
salary was not paid, however they strongly disputed whether it should be delivered in full
bearing in mind the disciplinary fine imposed by the club on 8 June 2022. Consequently,
the Single Judge acknowledged that his task was limited to establishing the validity of such
sanction and the quantum owed by the club to the player.
30. Against this background, the Single Judge turned to the evidence on file and found it
decisive that, despite demonstrating that the Disciplinary Regulations were in fact sent to
the player in English, the club did not advance convincing evidence that: (i) the player
incurred in the alleged violation; and (ii) it followed the guidelines therein established as
to escalation of the sanction. In other words, the club could not demonstrate that the
player had ever been warned (either verbally or in written) about a misbehaviour prior to
being fined. Furthermore, the Single Judge was also mindful that – in accordance with the
list of sanctions included in the Disciplinary Regulations – a penalty of 25% should be only
applied in case of the repeated (and severe) violation, which was also not demonstrated
by the club.
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31. In addition to the above, the Single Judge was also comforted by the player’s position
according to which a penalty could not be applied retroactively, let alone discounted from
overdue payments, in accordance with article 8 of the employment contract and the
longstanding jurisprudence of the Football Tribunal. Therefore, the Single Judge decided
that club’s decision was not reasonable nor proportionate in accordance with the wellestablished jurisprudence of the DRC, as well as with the express wording of the
employment contract concluded between the parties.
32. Therefore, the Single Judge was firm to determine that the disciplinary fine imposed by
the club on the player should be set aside.
33. It followed that the player shall be awarded the outstanding remuneration of USD 100,000
as claimed.
34. Lastly, the Single Judge highlighted that, in accordance with the constant practice of the
DRC in this regard, the player would be entitled to receive interest at the rate of 5% p.a.
on the outstanding amount as from its due date until the date of effective payment.
Nevertheless, the Single Judge stressed that as such interest was not requested by the
player, it could not be awarded in line with the general legal principle of ne ultra petita.
ii. Compliance with monetary decisions
35. In continuation, 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.
36. 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.
37. 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.
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38. 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.
39. 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.
d. Costs
40. 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.
41. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ezekiel Isoken Henty, is accepted.
2.
The Respondent, Al Hazem, has to pay to the Claimant the following amount:
- USD 100,000 as outstanding remuneration.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
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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