Dispute Resolution Chamber
Texto da decisão
REF FPSD-562
Decision of the
Dispute Resolution Chamber
passed on 17 June 2021
regarding an employment-related dispute concerning the player Adel Hmani
COMPOSITION:
Omar Ongaro (England), Deputy Chairman
Roy Vermeer (Netherlands), member
Philippe Diallo (France), member
CLAIMANT:
Adel Hmani, Tunisia
Represented by Ali Abbes
RESPONDENT:
Naft Al-Bassa SC, Iraq
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REF FPSD-562
I.
FACTS OF THE CASE
1.
On 6 October 2020, the parties concluded an employment contract (hereinafter: the
contract), valid from 6 October 2020 until 1 August 2021 (note: document on file).
2.
According to article 4 of the contract, the Claimant was entitled to USD 50,000, payable as
follows:
- 50% paid at the beginning of the season;
- 50% paid in 10 monthly instalments in the period between October 2020 and July 2021.
3.
On 5 December 2020, the Claimant put the Respondent in default of payment requesting
payment of USD 28,000 as outstanding remuneration and granted the Respondent 15 days
to remedy its default, however to no avail.
4.
On 23 December 2020, the Claimant unilaterally terminated his contract, due to the
outstanding remuneration.
5.
On 24 December 2020, the Claimant filed a claim against the Respondent in front of FIFA.
II.
PROCEEDINGS BEFORE FIFA
6.
On 24 December 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
The claim of the Claimant
7.
In support of its claim, the Claimant stated that he was entitled to 50% (USD 25,000)
payable at the date of the contract signature and 50% (USD 2,500 payable monthly) over
the rest of the contract period.
8.
According to the Claimant, the Respondent did not fulfil its contractual obligations by
failing to pay the amount of USD 28,000, broken down as follows:
- USD 25,000 as part of the first instalment that was payable at the date of the contract
signature;
- USD 500 as the unpaid salary for the 6 days of the month of October 2020;
- USD 2,500 as the salary for November 2020.
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9.
Despite having sent a default notice to the Respondent and granting it 15 days to comply
with its contractual obligation, the Claimant adds that the Respondent neither responded
nor complied.
10.
The Claimant adds that as a result of the above, he unilaterally terminated the contract with
just cause on 23 December 2020.
11.
In view of the above, the Claimant requested USD 28,000 as outstanding remuneration and
USD 35,000 as compensation for breach of contract calculated as USD 22,000 (residual
value of the contract), plus an additional 6 salaries in the amount of USD 15,000.
12.
The requests for relief of the Claimant, as amended, were the following:
- USD 25,000 as the remaining part of the sign on fee plus 5% interest p. a.as of 5 October
2020;
- USD 500 as outstanding remuneration for 6 days of October 2020;
- USD 2,500 as outstanding salary for November 2020;
- USD 35,000 as compensation for breach of contract by the Respondent, broken down as
follows:
USD 22,000 as residual value of the contract in the period between December
2020 and July 2021;
USD 15,000 as 6 months additional compensation
b.
Position of the Respondent
13.
The Respondent, in its response confirmed that it had signed a contract with the Claimant
and that it has overdue payments to the Claimant.
14.
According to the Respondent, it is connected to the Ministry of oil and that it failed to
meet its financial obligations due the reduction of oil prices as a result of COVID-19.
15.
Accordingly, the Respondent adds that the COVID-19 crisis impacted its ability to meet its
financial obligations.
16.
The Respondent adds that it is keen to reach a fair settlement with the Claimant, but that
he refused to communicate and give them a chance to comply.
17.
The Respondent confirmed that it has financial dues to the Claimant but added that the
Claimant also caused a technical damage to the team after he left the Respondent after
only two months of the ten month contract and that the claimed amount of USD 28,000
would cause financial damage to the Respondent.
18.
As a result, the Respondent proposed to pay the Claimant a reduced amount of USD
15,000.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
19.
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 5 January 2021 and submitted
for decision on 17 June 2021. Taking into account the wording of art. 21 of the 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
20.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), 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 Iraqi club.
21.
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 Player (edition February 2021), and
considering that the present claim was lodged on 24 December 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
22.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
23.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
24.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC emphasised that in the following considerations
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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
25.
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 what amount would be a
reasonable compensation for the Respondent to pay to the Claimant, as a result of the
unilateral termination of the contract by the Claimant on 23 December 2020.
26.
In this context, the Chamber acknowledged that it its task was to determine whether the
termination of the contract by the Claimant on 23 December was made with or without
just cause and what the consequences of such termination would be.
27.
In this context, the members of the Chamber first of all noted that the Respondent in its
reply to the claim did not deny that it owes the amounts claimed by the Claimant in his
claim to the Claimant, but argues that it was unable to meet its contractual obligations as
a result of the financial consequences of the COVI-19 pandemic.
28.
In this context, the members of the Chamber deemed it relevant to refer to the COVID-19
Guidelines issued by FIFA, as well as the FIFA COVID-19 FAQ, based on which the COVID19 outbreak is not to be considered a force majeure situation in any specific country or
territory. What is more, based on the COVID-19 Guidelines, an employer is not exempted
from paying the salary to its employees. Based on the foregoing, the reasons brought
forward by the Respondent in its defence do not exempt the Respondent from its obligation
to fulfil its contractual obligations towards the Claimant.
29.
What is more, based on the information on file the members of the Chamber came to the
conclusion that on the date of termination, 23 December 2020, roughly 2 monthly salaries,
remained outstanding. Furthermore, the Claimant had given the Respondent a 15 days’
deadline to remedy its default, however to no avail.
30.
In conclusion, the members of the Chamber concluded that the termination of the contract
by the Claimant on 23 December 2020 was made with just cause, and that the Respondent
is to be held liable for the consequences thereof.
31.
In view of all the above, the Chamber decided that the Claimant is entitled to outstanding
remuneration and compensation for breach of contract.
ii. Consequences
32.
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
Respondent during the protected period.
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33.
First of all, the members of the Chamber concurred that the Respondent must fulfill its
obligations as per employment contract up until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”. Consequently, the
Chamber decided that the Respondent is liable to pay to the Claimant the remuneration
that was outstanding at the time of the termination, i.e. the amount of USD 30,500,
consisting of:
-
the amount of USD 25,000 as part of the first instalment, payable at the beginning
of the season
the amount of USD 500 as salary for the month of October 2020;
the amount of USD 2,500 as salary for the month of November 2020;
the amount of USD 2,500 as salary for the month of December 2020.
34.
What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the amount of USD
25,000 as from 7 October 2020 until the date of effective payment.
35.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
36.
In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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.
37.
In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a 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.
38.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of
the employment contract on 23 December 2020, the contract would run for another 7
months (i.e. the period between 1 January 2021 and 1 August 2021), in which 7 monthly
salaries of USD 2,500 were to be paid.
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39.
Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to USD 17,500 and that such
amount shall serve as the basis for the final determination of the amount of compensation
for breach of contract.
40.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant was not able to find
new employment with another club, by means of which he could mitigate his damages.
Consequently, in accordance with the constant practice of the Dispute Resolution Chamber
and the general obligation of the Claimant to mitigate his damages, no further mitigation
of the amount of USD 17,500 shall take place.
41.
Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player – subject to him finding new employment by means of which
he could mitigate his damages - is entitled to an additional compensation of three monthly
salaries, subject to the early termination of the contract being due to overdue payables. In
case of egregious circumstances, the additional compensation may be increased up to a
maximum of six monthly salaries, whereby the overall compensation may never exceed the
rest value of the prematurely terminated contract.
42.
With the above in mind, as well as the request or the Respondent to be awarded the amount
of USD 15,000 as 6 months additional compensation, the Chamber decided to reject said
part of the Claimant’s claim, as the Claimant was not able to find new employment and
the maximum compensation awarded cannot exceed the residual value of the contract.
43.
In conclusion, the DRC decided that the Respondent is liable to pay the total amount of
USD 17,500 to the Claimant as compensation for breach of contract without just cause.
44.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
iii. Compliance with monetary decisions
45.
Finally, taking into account the consideration under numbers 32. and 42. above, the
Chamber referred to par. 1 lit. and 2 of art. 24bis 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.
46.
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,
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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.
47.
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. 24bis par. 2, 4, and 7 of the Regulations.
48.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
49.
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. 24bis par. 8
of the Regulations.
d.
Costs
50.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
51.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
52.
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, Adel Hmani, is partially accepted.
2.
The Respondent, Naft Al-Bassa SC, has to pay to the Claimant, the amount of USD 30,500 as
outstanding remuneration, plus 5% interest p.a. on the amount of USD 25,000 as of 7 October
2020 until the effective date of payment.
3.
The Respondent has to pay to the Claimant, the amount of USD 17,500 as compensation for
breach of contract.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank details
to the Respondent, the following consequences shall arise:
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 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 paid by the end of
the of the three entire and consecutive registration periods.
8.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 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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