Labour Disputes
Texto da decisão
REF. FPSD-16246
Decision of the
Dispute Resolution Chamber
passed on 14 November 2024
regarding an employment-related dispute concerning the Player
Bourhen Hkimi
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Gonzalo de Medinilla (Spain), Member
Iñigo Riestra (Mexico), Member
CLAIMANT:
Bourhen Hkimi, Tunisia
Represented by Messrs Ali Abbes and Mohamed Rokbani
RESPONDENT:
Alsafa Club, Saudi Arabia
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REF. FPSD-16246
I. Facts of the case
1.
On 3 June 2023, the Tunisian player Bourhen Hkimi (hereinafter: Claimant or player) and
the Saudi Arabian club Al Safa (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from the date of signature until 31 May 2024.
2.
According to the contract, the Respondent undertook to pay the Claimant the following net
remuneration:
-
3.
USD 14,454.50 monthly salary;
USD 20,000 sign on fee, payable by 23 June 2023.
On 1 June 2024, the Claimant and the Respondent signed a further employment contract,
extending the duration of their employment relationship until 31 May 2024 under the
following pecuniary terms:
- USD 14,454.50 monthly salary;
- USD 20,000 signature bonus, payable by 31 January 2025.
4.
On 3 August 2024, the parties signed an agreement, setting a payment schedule for a total
amount of SAR 291,728.01, subject to the following conditions:
- Default on any individual payment shall result in a SAR 5,000 penalty;
- Each delayed payment will result in an annual interest rate of 18% being accrued.
5.
At an uncertain date, the parties signed a financial clearance certificate, agreeing to
reschedule the following outstanding amounts:
-
Salary of January 2024: SAR 54,545.62 due by 20 August 2024;
Salary of February 2024: SAR 54,545.62 due by 20 August 2024;
Salary of March 2024: SAR 54,545.62 due by 30 October 2024;
Salary of April 2024: SAR 54,545.62 due by 30 November 2024;
Salary of May 2024: SAR 54,545.62 due by 30 December 2024;
Victory bonus – Al Batin: SAR 5,000 due by 31 January 2024 (sic);
Victory bonus – Hajer: SAR 5,000 due by 6 February 2024 (sic);
Victory bonus – Al Qaisumah: SAR 7,000 due by 29 March 2024 (sic);
Victory bonus – Al Jabalain: SAR 2,000 due by 15 May 2024 (sic).
6.
On 30 August 2024, the Claimant suffered an injury during a match against Al Adalah FC.
7.
On 1 September 2024, the Claimant underwent an MRI which revealed injuries sustained
to his femur tendons and abductors.
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REF. FPSD-16246
8.
Thereafter, at an unspecified date, the Respondent allegedly attempted to negotiate a
mutual termination agreement with the Claimant, which was purportedly rejected by the
Claimant.
9.
On 11 September 2024, the Respondent unilaterally terminated the Contract, arguing that
the Claimant is simulating the injury and not cooperating with the instructions of the fitness
coach.
II. Proceedings before FIFA
10. On 26 September 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
11. In his claim, the player argued that the Respondent not only failed to comply with the
financial obligations of the Contract, but likewise that the latter terminated the Contract
abusively, accusing the Claimant of simulating the injury and hampering the team’s
collective efforts.
12. The Claimant asserted that the termination of the Contract occurred without just cause.
13. Consequently, the following request for relief was formulated by the Claimant (without
specifying net or gross):
-
Outstanding amount (per financial clearance / Agreement): SAR 291,728.00 plus 18%
interest annually, as from 21 August 2024;
SAR 12,500 penalty for non-compliance with Agreement;
USD 43,636.50 outstanding salaries (between June 2024 and August 2024) plus interest
as from day following the respective due dates;
USD 163,364 compensation for breach of contract plus interest as from
11 September 2024.
b. Position of the Respondent
14. Despite having been invited to do so, the Respondent failed to submit a position vis-à-vis
the claim.
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REF. FPSD-16246
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Dispute Resolution Chamber (hereinafter: the 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 26 September 2024 and submitted for
decision on 12 November 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.
16. Furthermore, 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 (June 2024 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 Saudi Arabian club.
17. 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 (June 2024 edition), and
considering that the present claim was lodged on 26 September 2024, the June 2024
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
18. 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
19. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
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REF. FPSD-16246
i. Main legal discussion and considerations
20. The Chamber then moved to the substance of the matter, and took note of the fact that
the basis of the present dispute concerned the non-payment of various instalments under
both the Contract and the Agreement.
21. In this context, the Chamber acknowledged that its task was to determine whether the
amounts in dispute indeed remained unpaid, as alleged by the Claimant, and what the
consequences of such non-payment may be in respect of the premature departure from
the Contract.
22. Prior to entering into the substance of the matter, the Chamber deemed it relevant to
revisit the parties’ positions. On one hand, the Claimant argued that the Respondent
abusively terminated the Contract, accusing him wrongfully of having simulated his injury.
Furthermore, the Claimant asserted that the Respondent failed to comply with various
financial obligations under both the Contract and the Agreement.
23. On the other hand, the Respondent failed to provide a position of its own in respect of the
Claimant’s allegations.
24. At this stage, the Chamber recalled the principle of the burden of proof, pursuant to which
a party which asserts a certain fact also bears the burden of proving its veracity.
25. In the case at hand, the Respondent bore the burden of proving that it had a just cause to
prematurely terminate the Contract. Pursuant to the longstanding jurisprudence of the
Football Tribunal, a premature contractual termination may only be the result of a
substantial or consistent breach of contract. Where parties have more lenient measures
available to them to remedy the contractual relationship at hand, they must turn to such
measures prior to terminating the Contract unilaterally. A premature unilateral termination
of a Contract may only be an ultima ratio measure.
26. At present, the Respondent not only failed to adduce any evidence whatsoever to mount
an argument that the Claimant had been in breach of the Contract (in particular, simulating
an injury, as purported in the termination notice), but what is more, the Respondent itself
failed to comply with the terms of the Contract by not honouring its financial obligations.
The Chamber hereby also emphasised that the Claimant duly corroborated having suffered
an injury, placing the allegation of the Respondent from the termination notice in jeopardy.
27. It followed, in the Chamber’s view, that the termination of the Contract by the Respondent
fell far short of the requisite threshold of ultima ratio, and that the latter terminated the
Contract without just cause to the Claimant’s detriment.
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REF. FPSD-16246
ii. Consequences
28. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
29. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amounted to the following
amounts:
-
Outstanding amount (per financial clearance / Agreement): SAR 291,728.01;
SAR 12,500 penalty for non-compliance with Agreement;
USD 43,363.50 outstanding salaries (between June 2024 and August 2024).
30. In respect of the above, the Chamber noted that the Claimant would, in theory, have been
entitled to a higher amount in respect of the contractual penalty for failing to comply with
the deadlines set in the Agreement. Notwithstanding, and in line with the general legal
principle of ne iudex eat ultra petita partium, the Chamber limited the contractual penalty
to the amount requested by the Claimant – i.e., SAR 12,500.
31. Thus, in accordance with the principle of pacta sunt servanda, the Chamber awarded the
Claimant the outstanding amounts of SAR 304,228.01 plus USD 43,363.50.
32. In addition, taking into consideration the Claimant’s request, the terms of the Agreement
as well as the constant practice of the Chamber in this regard, the latter decided to award
the Claimant interest on the outstanding amounts as from the following dates:
-
On the amount of SAR 5,000, 18% p.a. as from 1 February 2024 until the date of
effective payment;
-
On the amount of SAR 5,000, 18% p.a. as from 7 February 2024 until the date of
effective payment;
-
On the amount of SAR 7,000, 18% p.a. as from 29 March 2024 until the date of
effective payment;
-
On the amount of SAR 2,000, 18% p.a. as from 16 May 2024 until the date of
effective payment;
-
On the amount of USD 14,454.50, 5% p.a. as from 1 July 2024 until the date of
effective payment;
-
On the amount of USD 14,454.50, 5% p.a. as from 1 August 2024 until the date of
effective payment;
-
On the amount of SAR 109,091.24, 18% p.a. as from 21 August 2024 until the date
of effective payment;
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REF. FPSD-16246
-
On the amount of USD 14,454.50, 5% p.a. as from 1 September 2024 until the date
of effective payment;
-
On the amount of SAR 163,636.77, 18% p.a. as from 11 September 2024 until the
date of effective payment.
33. 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.
34. 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.
35. 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.
36. 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 150,090.51 (i.e. the residual value of the Contract, or
nine monthly salaries between September 2024 and May 2025 plus the signature bonus of
USD 20,000 due in January 2025) serves as the basis for the determination of the amount
of compensation for breach of contract.
37. 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
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REF. FPSD-16246
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
38. In the case at hand, as the Claimant had not signed any new employment contract following
the contractual termination of the Respondent, he failed to mitigate his damages, and was
thus also not entitled to additional compensation.
39. 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 150,090.51 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
40. 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 12 September 2024 until the date of effective
payment.
iii. Compliance with monetary decisions
41. 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.
42. 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.
43. 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.
44. 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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REF. FPSD-16246
45. 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
46. 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.
47. 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.
48. 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-16246
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Bourhen Hkimi, is partially accepted.
2.
The Respondent, Alsafa Club, must pay to the Claimant the following amount(s):
- USD 43,363.50 as outstanding remuneration plus 5% interest p.a. as follows:
- 5% interest p.a. over the amount of USD 14,454.50 as from 1 July 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of USD 14,454.50 as from 1 August 2024 until the date
of effective payment;
- 5% interest p.a. over the amount of USD 14,454.50 as from 1 September 2024 until the
date of effective payment.
- SAR 291,728.01 as outstanding remuneration plus 5% interest p.a. as follows:
- 5% interest p.a. over the amount of SAR 5,000 as from 1 February 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of SAR 5,000 as from 7 February 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of SAR 7,000 as from 29 March 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of SAR 2,000 as from 16 May 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of SAR 109,091.24 as from 21 August 2024 until the
date of effective payment;
- 5% interest p.a. over the amount of SAR 163,636.77 as from 12 September 2024 until the
date of effective payment.
- SAR 12,500 as contractual penalty.
- USD 150,090.51 as compensation for breach of contract plus 5% interest p.a. as from
12 September 2024 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:
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REF. FPSD-16246
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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REF. FPSD-16246
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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