Labour Disputes
Texto da decisão
REF. FPSD-13627
Decision of the
Dispute Resolution Chamber
passed on 11 July 2024
regarding an employment-related dispute concerning
the player Rafik Kamerji
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Mario FLORES CHEMOR (Mexico), member
Michele COLUCCI (Italy), member
CLAIMANT/COUNTER-RESPONDENT 1:
Rafik Kamerji, Tunisia
Represented by Slim Boulasnem
RESPONDENT/COUNTERCLAIMANT:
Al Faisaly, Jordan
COUNTER-RESPONDENT 2:
Avenir Sp. De La Marsa, Tunisia
pg. 2
REF. FPSD-13627
I. Facts of the case
1.
On 20 July 2023, the Tunisian player, Rafik Kamerji (hereinafter: the Claimant/CounterRespondent 1 or the Player) and the Jordanian club, Al Faisaly (hereinafter: the Respondent
/Counter-Claimant or the Club) concluded an employment contract valid as from the date
of signature until the end of the season 2023/2024 (hereinafter: the contract).
2.
According to the contract, the Club undertook to pay the Player the following:
A total salary of USD 170,000
-
USD 30,000: 48 hours after the arrival of the Player and the arrival of the
Player’s International Transfer Certificate (hereinafter: ITC).
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USD 4,650 on 31 July 2023.
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USD 13,535 on 31 August 2023.
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USD 13,535 on 30 September 2023.
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USD 13,535 on 31 October 2023.
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USD 13,535 on 30 November 2023.
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USD 13,535 on 31 December 2023.
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USD 13,535 on 31 January 2024.
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USD 13,535 on 28 February 2024.
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USD 13,535 on 31 March 2024.
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USD 13,535 on 30 April 2024.
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USD 13,535 on 31 May 2024.
Housing and car.
4 flight tickets during the 2023/2024 season.
3.
On 26 July 2023, the Club paid the Player JOD 21,240.
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REF. FPSD-13627
4.
On 23 August 2023, the Club paid the Player JOD 9,582.
5.
On 19 October 2023, the Club paid the Player JOD 3,292
6.
On 5 December 2023, the Player put the Club in default requesting the payment of USD
41,605 corresponding to the balance of the first salary (USD 1,000) and the salaries of
September, October and November 2023 (USD 13,535 each); setting a time limit of 15 days
in order to remedy the default. The correspondence also mentioned the following “you will
find the player's bank details in the attachment”, however no information as to the bank
details was found. (hereinafter: the first default notice)
7.
On 9 December 2023, the Player sent the Club the following “Please find attached the formal
notice sent by the player Rafik Kamerji on 5.12.2023 to the club's email address on FIFA TMS”.
The Club contested the receipt of this letter.
8.
On 14 December 2023, the Club paid September 2023 salary (USD 13,535) to the Player.
9.
On 20 December 2023, the Player informed the Club that the payment was only a partial
payment and that a remaining balance of USD 28,070 was still due, for which the Player set
an additional deadline of 5 days.
10. On 26 December 2023, the Player sent a termination notice to the Club indicating that the
salaries requested remained unpaid.
11. On 30 December 2023, the Club sent a letter to the Player mentioning that the Player left
Jordan without any notice, coordination, or approval of the Club. The Club requested the
Player to take the appropriate measures.
12. On 2 January 2024, the Player signed an employment contract with Avenir Sp. De La Marsa
(hereinafter: the Counter-respondent 2) valid as from the date of signature until 30 June
2025, including a monthly salary of TND 1,500/ USD 485.84 for the first season (until 30
June 2024) and TND 2,000 for the second season.
II. Proceedings before FIFA
13. On 6 February 2024, the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Player
14. The Player lodged a claim against the Club for breach of contract. In his claim, the Player
argued that he had just cause to terminate the contract, as his salaries were not fully paid
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REF. FPSD-13627
following his default notice. Consequently, he is entitled to compensation in accordance
with art. 17 of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) P.
15. It is to be noted that the Player mentioned that he was “harassed” by the landlord as he
was not able to pay his rent.
16. The Player requested the following relief:
Outstanding remuneration
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USD 1,000 as balance of the payment of 31 July 2023.
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USD 13,535 as salary due on 31 October 2023.
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USD 13,535 as salary due on 31 November 2023.
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USD 13,535 as salary due on 31 December 2023.
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The Player requested 5 % interest p.a as from the due dates.
Compensation
-
USD 67,675 plus 5 % p.a. interest as from the date of termination.
Flight tickets
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TUN 3,180 on 3 November 2023 plus 5 % interest p.a. as from 4 November
2023.
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TUN 2,900 on 3 January 2024 plus 5 % interest p.a. as from 4 January 2024.
-
2 tickets round trip Tunisia – Jordan calculated as per FIFA travel plus 5%
as from the date of termination.
Additional compensation
-
In case the Player concludes a new contract to provide an additional
compensation of 3 months’ salary.
b. Position of the Club / Counterclaim
17. In its reply, the Club filed a counterclaim.
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REF. FPSD-13627
18. In accordance with the Club:
-
The default notice of 5 December 2023 did not contain the bank details, as
mentioned in the first default notice.
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The Club did not receive any notification on 9 December 2023.
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On 14 December 2023, the management of the Club handled the Player’s September
salary in cash. Moreover, the Player was asked for his bank account in order to send
his dues, for which the Player responded that “he will check with his agent regarding
the details of the bank account and that since the promise has been fulfilled, the salary
has been paid, and the bank account details have been requested, he is proud that he
plays for Al-Faisaly Club and that he promises the club to achieve the best achievement it
can achieve. Regarding the notification sent on 5/12/2023, it is considered canceled
because the club was late in paying 3 consecutive salaries and that today, 14/12/2023, a
salary was paid. The notification is considered canceled, and he belongs to a club in
Jordan with the greatest achievements in the region, and according to records, the player
is entitled to an amount of 27,070 US dollars to date, according to the club’s records.”
-
In view of the point above, the Player cancelled the first default notice.
-
The Player’s legal representative sent another notice dated 20 December 2023,
requesting the disbursement of two salaries (October and November 2023) within 5
days without mentioning the Player’s bank account details, in violation of Article 14
bis of the RSTP.
-
On 26 December 2023, the Club was informed by email that the Player had
unilaterally terminated the contract, and on the same day, the Player left the Club
and travelled outside Jordan.
19. In view of the above circumstances, the Player terminated the contract without just cause.
“The first notification was canceled according to what was stated in the testimony (memo) of the
club employees on December 14, 2023. The player did not commit to informing the club of his
bank account details in the second notice (20 December 2023), moreover, the player did not
deal with the club in good faith and Al Faisaly club was not given a 15-day period.”
20. The Club requested the following relief:
“According to the above the club asking the Player and his new Club Mostakbal Almarsa
(L'Avenir sportif de La Marsa) of Tunisia jointly and severally to pay the following
The amount of 94,745 USD which is the remained amount of the contract.
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REF. FPSD-13627
- A legal interest of 5% from the due date.
- To apply sanctions against the Player and his new Club Mostakbal Almarsa of Tunisia.”
c. Player’s response to the counterclaim
21. In his reply to the counterclaim, the Player indicated that art. 14bis of the RSTP only
requires 2 conditions i.e., 2 monthly salaries due and a default notice with a 15 days’
deadline, and no further condition is required. The fact that the letter mentioned that the
bank details were added, did not affect the validity of the letter as both parties have already
agreed and implemented a different means of payment.
22. Moreover, the Player mentioned that:
-
the Club’s position is contradictory as it recognises that the usual means of payment
was hand-delivered, and that after receiving the formal notice, the Club only paid
one of the missing salaries.
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the Club has made no effort and therefore showed no willingness to honour its
obligation.
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The counterclaim is unfounded and is to be rejected.
23. As to the cancelation of the first default notice, the Player indicated that this was not
correct, and the memo provided by one of the Club’s employees could not have any value.
The Player sent 3 default notices and its position was clear, he was requesting his salaries.
24. The Player also mentioned that “at the time of the first notice of default, the Club owed more
than 3 months' salaries. One month later, at the time of termination, the Club had only paid one
month's salary of these 3 salaries. This is clearly stated in the letters in question. Thus, the Player
terminated with just cause”.
25. Finally, the Player concluded a new contract, and submitted that he should be entitled to
an additional compensation of 6 months.
d. Final comments of the Club
26. In its final comments, the Club indicated that:
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The Player accepted that he did not provide his bank details.
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It questioned why it must find alternative means of payment, given that the Player
was aware of the FIFA-approved method of payment.
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REF. FPSD-13627
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As to the cancelation of the first default notice, the Club mentioned that “the legal
representative could have provided testimony from the player, but he forced the player
to exclude this important factual incident and contented himself with denying this
incident.”
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“After the player cancelled the first notification, the legal representative had to inform the
club of the bank account number because the first notification lacked this important
element, and the club had to be given a second period of 15 days to pay the player's dues.
This did not happen at all, and he decided to give the club only 5 days to show good faith
as stated in the player's response.”
e. Position of the Counter-Respondent 2
27. Despite being invited the Counter-Respondent 2 did not provide its position to
counterclaim.
pg. 8
REF. FPSD-13627
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 6 February 2024 and submitted
for decision on 11 July 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.
29. 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 par. 1. lit. b)
of the RSTP (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 Jordanian club, with the involvement of a
Tunisian club.
30. Finally, 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 RSTP (June 2024 edition), and considering that the present claim was lodged on 6
February 2024, the February 2024 edition of said regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
b. Burden of proof
31. 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
32. 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
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REF. FPSD-13627
considerations 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
33. 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 the legality of the Player’s
early termination of the contract based on the alleged non-payment of certain financial
obligations by the Club as per the contract, in accordance with art. 14bis of the Regulations.
34. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Club and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
35. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
36. In continuation the Chamber observed the following:
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The Player sent the first default notice on 5 December 2023 of USD 41,605
requesting the balance of the first salary (USD 1,000) and the salaries of September,
October and November 2023 (USD 13,535 each)
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Following the first default notice, one 1 salary was paid, USD 13,535, and two
salaries were still due.
-
With respect to the balance of the first payment of USD 1,000 claimed by the Player,
the Chamber observed that the Club paid the amount of JOD 3,292 / USD 4,643.17
on 19 October 2023, which was not contested by the Player. Consequently, the only
amount due in respect of this request is USD 6, which appears to be an exchange
rate difference. Therefore, the Chamber considered that this amount had been
settled in full.
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On 20 December 2023 another default notice was sent.
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The Player sent the termination on 26 December 2023.
37. In view of the above, the Chamber concluded that two salaries were still due at the time of
the termination.
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REF. FPSD-13627
38. Then, the Chamber recalled the Respondent’s argument that the first default notice was
cancelled or invalid, as such default did not contain the bank information it made reference
to and, in any event, the Player had allegedly cancelled it.
39. In this regard, the Chamber observed that there was no evidence other than the memo
prepared by the Club mentioning such fact, therefore the Chamber considered that the
Club did not carry its burden of proving this allegation.
40. Moreover, the Chamber mentioned that the bank details information does not constitute
a requirement under art. 14bis of the Regulations, moreover, as per the evidence on file
the Chamber observed that (i) the Club did not request such information from the Player
since the sending of the first default notice, thus the Club did not proactively seek to pay
the amounts due; (ii) following the partial payment, an additional letter was sent by the
Player, and no reply or request for bank details was provided by the Club; and (iii) the Club
was able to pay such amounts, as it performed a partial payment prior the termination of
the contract, but it nevertheless did not fulfil its financial obligations as requested in the
first default notice.
41. Consequently, the Chamber was of the opinion that the first default notice was valid.
42. In continuation, the Chamber noted that the Player claimed not having received his
remuneration corresponding to September, October and November 2023 at the moment
of the first default notice. Furthermore, the Chamber noted that (i) the Player has provided
written evidence of having put the Club in default on 5 December 2023, i.e., at least 15 days
before unilaterally terminating the contract on 26 December 2023 and (ii) at the moment
of termination only September salary was paid, and two salaries (October and November
2023) were still due
43. The Chamber also noted that in the case at hand the Club bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, no evidence was provided.
44. Thus, the Chamber concluded that the Player had just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
45. Finally, on account of the above, the Chamber decided to reject the Club’s counterclaim.
ii. Consequences
46. 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
Club.
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REF. FPSD-13627
47. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, are equivalent to 3 salaries under
the contract, amounting to USD 40,605 (October, November and December 2023).
48. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Club is liable to pay to the Player the amounts which were
outstanding under the contract at the moment of the termination, i.e., USD 40,605 (i.e., 3
times USD 13,535).
49. Moreover, the Chamber also concluded that the Player is entitled to the reimbursement of
the flight tickets as it was contractually agreed and as per the evidence provided.
Consequently, the Player is entitled to TUN 6,080.
50. In addition, 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 at the rate of
5% p.a. as follows:
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On USD 13,535 as from 1 November 2023 until the date of effective payment;
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On USD 13,535 as from 1 December 2023 until the date of effective payment;
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On USD 13,535 as from 1 January 2024 until the date of effective payment;
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On TND 3,180 as from 4 November 2023 until the date of effective payment;
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On TND 2,900 as from 4 January 2024 until the date of effective payment;
51. 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.
52. 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.
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REF. FPSD-13627
53. 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.
54. 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 67,675 (i.e., 5 times USD 13,535) serves as the basis for
the determination of the amount of compensation for breach of contract.
55. 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.
56. Indeed, the player found employment with Avenir Sp. De La Marsa. In accordance with the
pertinent employment contract, the Player was entitled to approximately TND 1,500/ USD
485.84 per month. Therefore, the Chamber concluded that the Player mitigated his
damages in the total amount of USD 2,429.20.
57. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e., overdue payables by the Club, and therefore
decided that the Player shall receive additional compensation.
58. In this respect, the DRC decided to award the amount of additional compensation of USD
USD 40,605, i.e., three times the monthly remuneration of the Player. However, the
Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of the
Regulations, the overall compensation may never exceed the rest value of the prematurely
terminated contract.
59. 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 67,675, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
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REF. FPSD-13627
60. In addition, 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 26 December 2023 until the date of effective
payment.
61. Lastly, the Chamber recalled that it already granted the Player the reimbursement of the
flight tickets, therefore, the Chamber rejected the Player’s request as to the additional flight
tickets.
iii. Compliance with monetary decisions
62. 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.
63. 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.
64. 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.
65. The Club 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.
66. 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
67. 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,
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REF. FPSD-13627
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
68. 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.
69. 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-13627
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent 1, Rafik Kamerji, is partially accepted.
2.
The Respondent/Counter-Claimant, Al Faisaly, must pay to the Claimant/CounterRespondent 1 the following amounts:
a. USD 13,535 as outstanding remuneration plus 5% interest p.a. as from 1 November
2023 until the date of effective payment;
b. USD 13,535 as outstanding remuneration plus 5% interest p.a. as from 1 December
2023 until the date of effective payment;
c. USD 13,535 as outstanding remuneration plus 5% interest p.a. as from 1 January 2024
until the date of effective payment;
d. TND 3,180 as outstanding remuneration plus 5% interest p.a. as from 4 November
2023 until the date of effective payment;
e. TND 2,900 as outstanding remuneration plus 5% interest p.a. as from 4 January 2024
until the date of effective payment;
f.
USD 67,675 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 26 December 2023 until the date of effective payment;
3.
Any further claims of the Claimant/Counter-Respondent 1 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/Counter-Claimant 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/CounterRespondent 1 in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
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REF. FPSD-13627
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13627
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
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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