Labour Disputes
Texto da decisão
REF. FPSD-10048
Decision of the
Dispute Resolution Chamber
passed on 17 August 2023
regarding an employment-related dispute concerning the player Mohammed
Abdul Kadiri
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Tomislav Kasalo (Croatia), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Mohammed Abdul Kadiri, Ghana
Represented by Nir Inbar
RESPONDENT:
FC ISTIKLOL, Tajikistan
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REF. FPSD-10048
I. Facts of the case
1.
On 17 February 2023, the player from Ghana, Mohammed Abdul Kadiri (hereinafter:
Claimant or player) and the club from Tajikistan, FC ISTIKLOL (hereinafter: club or
Respondent) concluded an employment contract (hereinafter: contract) valid as from 17
February 2023 until 1 June 2024.
2.
According to the clause 5.1. of the contract, the Respondent undertook to pay the Claimant
a monthly salary of TJS (Tajikistani Somoni) 126,000.
3.
Clause 7.4 of the contract, stipulates:
“This contract comes into full force after a medical examination in Tajikistan within two days after
camp in Turkey and will be issued as a separate protocol in this contract with a report on the
conclusion of doctors, in case of unhealed injuries or any illnesses that prevent the player from playing
football, this contract is cancelled.”
4.
On 16 February 2023, the Claimant started official training and played friendly matches for
the Respondent.
5.
Allegedly, the Respondent, requested that the Claimant accept a permanent reduction of
his monthly which he refused, whereafter the Respondent requested the Claimant to
undergo an additional general medical examination in the local hospital.
6.
The Claimant stated that, “after conducting these additional medical examinations, in bad
faith, the Respondent informed the Player that he allegedly suffered from "heart problems", and
that consequently as from 13 March 2023 he could no longer be a part of the Respondent.”
7.
On 13 March 2023, the Respondent terminated the contract.
8.
On 22 March 2023 the Claimant sent a notice to the Respondent, “demanding that the
Respondent shall compensate him in the amount of Somoni 2,016,000 at 5% interest p.a as from
13 March 2023 until the date of effective payment, due to an early and unilateral termination
of the Contract without just cause during the protected period.”
9.
On 5 April 2023 the Respondent responded, alleging that the Claimant was diagnosed with
"serious health problems in the work of the heart" and consequently alleged that according to
clause 7.4 of the Contract the Respondent "has the right to cancel the Contract with a player
who has not passed a medical examination and has contraindications to playing football".
10. The player confirmed that he has remained unemployed.
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REF. FPSD-10048
II. Proceedings before FIFA
11. On 27 April 2023, 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
12. According to the Claimant, (i) he successfully passed all medical examinations conducted
by the Respondent before signing the contract; (ii) upon failing to convince him to reduce
his monthly salaries and with no medical trigger or event giving rise to a heart diagnosis,
the Respondent requested him to undergo additional general examinations in the local
hospital, allegedly according to which it came to the bad faith conclusion that he suffers
from an alleged heart impediment and (iii) this alleged impediment was nothing but a mere
excuse for a breach of contract without just cause.
13. The requests for relief of the Claimant, were that the Respondent pay him, the total amount
of TJS 2,016,000 net as compensation, plus 5% interest p.a. as from 13 March 2023 until the
date of effective payment and that the FIFA DRC shall impose sportive sanctions on the
Respondent.
b. Position of the Respondent
14. In its reply, the Respondent indicated that the contract was signed with the Claimant “with
the inclusion of Special Conditions (section 7 of the Contract) in terms of the fact that it comes
into force and becomes binding on the parties only after the successful completion of the
medical examination in the Republic of Tajikistan.”
15. On 1 March 2023, “the Respondent returned to Tajikistan and according to the terms of the
contract on March 03, 2023, the player was sent for a medical examination to the Republican
Clinical Center of Cardiology in Dushanbe, which is confirmed by the examination protocol of a
qualified cardiologist dated 03.03.2023.”
16. According to the Respondent, based on the aforesaid results of the medical examination,
“the Claimant was diagnosed with heart problems that prevented him from playing professional
sport and therefore in the period from March 11 2023 to March 13, 2023, by the decision of the
Club, the Player underwent a second medical examination, with additional examinations by a
cardiologist who confirmed the diagnosis made earlier.”
17. On 11 March 2023, the Claimant underwent another examination and based on the results
of the examination the Claimant was diagnosed with Sports heart.
18. The Respondent indicated that as the Claimant was diagnosed problems linked to his heart
which prevent him from participating in professional sports, it decided to cancel the
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REF. FPSD-10048
contract concluded with the Claimant based on clause 7 of the contract. In this context, the
Respondent indicated that the contract has not finally entered into legal force and has not
become binding on the parties.
19. The Respondent further mentioned that the Claimant, “was aware of his health problems
that impede professional sports and did not report them to the Club when signing the contract,
which can only indicate the Player's dishonesty and desire to mislead the Club. The Player's
actions are knowingly unfair, they show signs of a fraudulent scheme aimed at unjust
enrichment of the Player at the expense of the Club without appropriate legal grounds.”
20. In conclusion, the Respondent requested the following relief:
(a) “FIFA DRC dismisses the Claimant's claims against the Respondent in full.
(b) FIFA DRC confirms the cancellation of the contract by the Respondent to the Plaintiff for good cause.
(c) FIFA DRC does not impose sports sanctions on the Respondent.”
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REF. FPSD-10048
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. 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 27 April 2023 and submitted
for decision on 17 August 2023. 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.
22. Subsequently, the members of 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 lit. b) of the
Regulations on the Status and Transfer of Players May 2023 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from Ghana and a club
from Tajikistan.
23. 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 (May 2023 edition), and
considering that the present claim was lodged on 27 April 2023, the March 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
24. 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
25. Its competence and the applicable regulations having been established, 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 the assessment of the matter at hand.
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REF. FPSD-10048
i. Main legal discussion and considerations
26. The foregoing having been established, the Chamber moved to the substance of the matter
and took note of the fact that the Claimant claims that the Respondent had prematurely
terminated the contract without just cause.
27. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the Respondent had a valid justification for
terminating the contract.
28. In this respect, the Chamber noted that the Respondent argued that it was entitled to
terminate the contract on the basis of clause 7.4 of the contract, which stipulates that, “this
contract comes into full force after a medical examination in Tajikistan within two days after
camp in Turkey and will be issued as a separate protocol in this contract with a report on the
conclusion of doctors, in case of unhealed injuries or any illnesses that prevent the player from
playing football, this contract is cancelled.”
29. In this context, the Chamber 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 Chamber 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.
30. Based on the foregoing, the Chamber concluded that the Respondent terminated the
contract without just cause and that the Respondent is to be held liable for the
consequences thereof.
ii. Consequences
31. 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.
32. The Chamber noted that the parties differed on the exact date of termination of the
contract, in that the Claimant indicated that the contract was terminated on 13 March 2023
and the Respondent indicated that the contract was terminated as of 3 April 2023, in this
regard the Chamber took into account the date of 13 March 2023, as the date of
termination as the Respondent confirmed that the Claimant was at its disposal until the
said date.
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REF. FPSD-10048
33. The Chamber further noted that the Respondent indicated that it paid the Claimant an
amount of TJS 113,568. In this regard the Chamber took into account the signed payment
sheet the Respondent submitted in support of its allegation and that the signature thereof
was not denied by the Claimant, the Chamber therefore decided to deduct the said amount
from any awarded compensation.
34. 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.
35. 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.
36. 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.
37. 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 TJS 1,944,000 (i.e. pro rata February 2023 at TJS 54,000 and
TJS 126,000 x 15 months) serves as the basis for the determination of the amount of
compensation for breach of contract.
38. 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
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
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REF. FPSD-10048
39. In this respect, the player confirmed that he had remained unemployed.
40. Subsequently, the Chamber confirmed that as the contract termination did not take place
due to overdue payables by the club, the player shall not be entitled to receive additional
compensation.
41. 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 TJS 1,830,432 net as to the player (i.e. TJS 1,944,000 minus TJS 113,568), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
42. 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 13 March 2023 until the date of effective payment.
iii. Compliance with monetary decisions
43. 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.
44. 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.
45. 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.
46. 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-10048
47. 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
48. 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.
49. 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.
50. 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-10048
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mohammed Abdul Kadiri, is partially accepted.
2.
The Respondent, FC ISTIKLOL, must pay to the Claimant the following amount(s):
- TJS 1,830,432 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 13 March 2023 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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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