Labour Disputes
Texto da decisão
REF FPSD-7449
Decision of the
Dispute Resolution Chamber
passed on 7 December 2022
regarding an employment-related dispute concerning the player Ayoub
Jertila
BY:
Jorge GUTIERREZ (Costa Rica)
CLAIMANT:
Ayoub Jertila, Tunisia
Represented by Slim Boulesnam
RESPONDENT:
El Soqour, Libya
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REF FPSD-7449
I. Facts of the case
1.
On 20 November 2021, the Tunisian player, Ayoub Jertila (hereinafter: the Claimant or the
Player), and the Libyan club, El Soqour (hereinafter: the Respondent or the Club) signed an
employment contract (hereinafter: the Contract) valid as from the date of signature until
the end of the 2021/2022 season.
2.
In accordance with the Transfer Matching System (TMS), the Libyan football season
2021/2022 ended on 31 May 2022.
3.
In accordance with the Contract, the Respondent undertook to pay to the Claimant the
total amount of LYD 70,000. The Contract mentioned that half of the amount would be
paid at the beginning of the Contract. As to the other half, the Contract did not specify a
due date.
4.
In accordance with article 9 of the Contract, the amounts received by the Player are
subject to the provisions of the mentioned Contract and to the deductions in force
according to the rules of the Club.
5.
In accordance with article 10 of the Contract, the internal regulations of the Club are an
integral part of the present Contract.
6.
By correspondence dated 30 August 2022 sent to the Libyan Football Federation (LFF), the
Claimant put the Respondent in default of payment of LYB 70,000 corresponding to his
unpaid salaries, setting a 10 days’ time limit in order to remedy the default.
II. Proceedings before FIFA
7.
On 13 September 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
8.
The Player lodged the claim at hand before FIFA requesting payment of his outstanding
remuneration amounting to LYB 70,000.
9.
The requests for relief of the Claimant were the following:
- LYD 35,000 plus 5% interest per annum as from 20 November 2021 until the date of
effective payment.
- LYD 35,000 plus 5% interest per annum as from 30 May 2022 until the date of effective
payment.
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b. Position of the Respondent
10. According to the Respondent, the Player received the amount of LYD 25,000 at the
signature of the Contract. Moreover, the Respondent indicated that after a rest week, the
Player did not join the team and did not return to Libya and participate in trainings and
matches. The Club argued that the Player was contacted several times via WhatsApp in
order to return.
11. The Respondent further indicated that it deducted the amount of LYD 10,000 for the first
instalment due to the alleged Player’s absences.
12. The Respondent further contested the reception of the default notice which was provided
via the LFF.
13. It is to be noted that the Club referred to both parties with different names in some
statements of its response. However, the Club clearly stated that it was referring to this
case and provided documents such as the passport of the Player.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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 13 September
2022 and submitted for decision on 7 December 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.
15. 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 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 Libyan club.
16. Finally, 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 13 September 2022, the July 2022
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
17. 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 TMS.
c. Merits of the dispute
18. 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
19. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the lawfulness of the
non-payment of the financial obligations under the Contract, namely LYD 70,000,
corresponding to total remuneration under the Contract.
20. In this context, the Single Judge took note that the Respondent indicated that (1) it paid
LYD 25,000; (2) the Player did not return to Libya and (3) a fine was imposed to the Player.
The Single Judge also noted that the Respondent provided as documentation in support
of the above a letter of a hotel indicating that the Player left said hotel on 2 March 2022.
21. In this respect, the Single Judge wished to point out that the Respondent failed to submit
any evidence corroborating the payment of that amount, the due diligence process with
regards to a disciplinary proceeding to impose a fine on the Player, and any
documentation alleging that the Player was not in Libya. Consequently, the Single Judge
concluded that the Respondent failed to meet its burden of proof and accordingly its
position should be rejected.
22. In view of the foregoing, and bearing in mind the basic legal principle of pacta sunt
servanda, which in essence means that agreements must be respected by the parties in
good faith, the Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the Contract concluded between the parties, namely LYD 70,000.
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23. In addition, taking into account the Claimant’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from the following dates:
-
On the amount of LYD 35,000, 5% p.a. as from 21 November 2021 until the date
of effective payment;
On the amount of LYD 35,000, 5% p.a. as from 13 September 2022 until the date
of effective payment.
24. Finally, the Single Judge referred to art. 12bis par. 2 of the Regulations, which stipulates
that any club found to have delayed a due payment for more than 30 days without a prima
facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
25. To this end, the Single Judge noted that the default notice was sent to the Libyan
Federation and there is no record that said letter was sent to the Club. Accordingly, the
Single Judge decided no to apply a sanction under art. 12 bis of the Regulations.
ii. Compliance with monetary decisions
26. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with his 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.
27. In this regard, the Single Judge 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.
28. Therefore, bearing in mind the above, the Single Judge 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.
29. 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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30. 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
31. 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.
32. 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.
33. Lastly, the Single Judge concluded his 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, Ayoub Jertila, is partially accepted.
2.
The Respondent, El Soqour, has to pay to the Claimant, the following amounts:
- LYD 35,000 as outstanding remuneration plus 5% interest p.a. as from 21 November
2021 until the date of effective payment;
- LYD 35,000 as outstanding remuneration plus 5% interest p.a. as from 13 September
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
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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
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