Labour Disputes
Texto da decisão
REF. FPSD-14620
Decision of the
Dispute Resolution Chamber
passed on 7 August 2024
regarding an employment-related dispute concerning the player Layth Ali
Abdalrahim Kharoub
BY:
Jorge GUTIÉRREZ (Costa Rica)
CLAIMANT:
Layth Ali Abdalrahim Kharoub, Palestine
Represented by Ralph Charbel
RESPONDENT:
Wefaq Ejdabya, Libya
pg. 2
REF. FPSD-14620
I. Facts of the case
1.
Allegedly, on 19 March 2024, the Palestinian player Layth Ali Abdalrahim Kharoub
(hereinafter: the Claimant) and the Libyan club Wefaq Ejdabya (hereinafter: the Respondent)
entered an employment relationship by means of a document entitled “Offer” (hereinafter:
the Offer). The terms of said document indicated it would be valid as from the date of
conclusion until the end of the 2023/2024 sporting season organized by the Libyan
organized by the Libyan Football Federation (hereinafter: LFF).
2.
The Offer provided by the Claimant only bore the Claimant’s signature.
3.
In accordance with the Offer, the Respondent undertook to pay the Claimant USD 12,000,
with USD 6,000 as a first payment due on the date of signature, and a second payment of
USD 6,000 due before the end of the sporting season.
4.
Furthermore, the Respondent undertook to provide the Claimant with flight tickets from
his country of residence to Libya and back after the end of the term stipulated in the Offer,
as well as “Good Accommodation and Residency.”
5.
By correspondence dated 15 April 2024, the Claimant put the Respondent in default of
payment of USD 12,000, setting a time limit expiring on 30 April 2024 in order to remedy
the default.
6.
According to the information retrieved from the FIFA Transfer Matching System, the
2023/2024 season in Libya lasted from 1 October 2023 through 1 July 2024.
II. Proceedings before FIFA
7.
On 13 May 2024, 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.
According to the Claimant, the Offer, though entitled as such, is in fact an employment
contract, as it contains all the essentialia negotii of an employment contract:
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The parties;
Their role – according to Article 1, the Claimant accepted to play as a professional
football player with the Respondent during the 2023/2024 sporting season
organized by the LFF;
The duration of the employment relationship – according to Article 2, the duration
of the second half of the sporting season in addition to the Seven League;
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REF. FPSD-14620
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9.
The remuneration payable by the employer to the employee – according to Article
3, USD 12,000, with half payable on the date of signature and half payable before
the end of the season.
The Claimant further highlighted that the word “contract” was mentioned 6 times in the
Offer, and that both parties signed the document, though the Claimant’s copy only
contained his signature. However, the Claimant argued that, according to the longstanding jurisprudence of FIFA and CAS, contracts are valid even if they do not contain the
parties’ signatures.
10. Finally, the Claimant alleged that the Respondent drafted and allowed the Claimant to sign
a contract, a document which in fact contains the Respondent’s logo. According to the
Claimant, he received the document from the Respondent while he was in Palestine on 19
March 2024, signed it, and sent it back to the Respondent. However, the Respondent did
not provide him with a countersigned copy.
11. The Claimant then alleged that it was during phone calls held on 26 March 2024 with the
Respondent’s Vice-President, Mr. Mohamed Souleiman, that the Respondent informed him
they would not send him his flight ticket or execute the binding contract. Furthermore, the
Claimant highlighted that the Respondent did not deny the presence of a binding contract
between the parties, as it did not reply to the default notice.
12. For these reasons, the Claimant sustained that the parties signed a valid and binding
employment contract. Therefore, the Respondent breached the Offer by unilaterally
terminating it without just cause.
13. As to the consequences, the Claimant argued that he is owed outstanding remuneration in
the amount of USD 6,000 and USD 16,000 as compensation for breach of contract,
consisting of USD 6,000 as the residual value of the Offer, increased by an additional
compensation of USD 10,000 for moral damages based on the specificity of sport. In this
respect, the Claimant averred that he suffered stress and extremely tough moments due
to the timing of the termination, as he was unable to play for the remainder of the
2023/2024 season and this had disastrous consequences on his sporting career.
14. The Claimant further requested that, in light of the unilateral termination without just
cause during the protected period, the Respondent be banned from registering any new
players in the sense of art. 17 par. 4 RSTP.
15. The requests for relief of the Claimant were the following:
“a) rule that the Claim is admissible;
b) order the Respondent to pay to the Claimant outstanding payment in the amount of
6,000 USD with 5% interest p.a. as from 19 March 2024 until the date of effective
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REF. FPSD-14620
payment on the amount of 6,000 USD;
c) decide that the Respondent is liable to pay the amount of 16,000 USD to the Claimant
as compensation for breach of contract, with 5% interest p.a. as from 26 March 2024
until the date of effective payment on the amount of 16,000 USD;
d) ban Al Wefaq Ly SC club from registering any new players, either nationally or
internationally, for two entire and consecutive registration periods.”
b. Position of the Respondent
16. Despite being invited to do so, the Respondent did not file a reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, it took
note that the present matter was presented to FIFA on 13 May 2024 and submitted for
decision on 7 August 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.
18. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Palestinian player and a Libyan club.
19. Subsequently, 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 (June 2024 edition), and
considering that the present claim was lodged on 13 May 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
pg. 5
REF. FPSD-14620
b. Burden of proof
20. 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 Transfer Matching System (TMS).
c. Merits of the dispute
21. Having established the competence and the applicable regulations, 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 it will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
22. The Single Judge then moved to the substance of the matter, and took note of the fact that
his task was to first determine whether the document allegedly concluded between the
parties on 19 March 2024 – the Offer – can be considered a valid and binding employment
contract.
23. In view of the foregoing, Single Judge started by recalling the well-established jurisprudence
of the Dispute Resolution Chamber (hereinafter: the DRC) which dictates that, in order for
an employment contract to be considered valid and binding, apart from the signature of
both the employer and the employee (or the corresponding proof of consent of both
parties), it should contain the essentialia negotii of an employment contract, such as the
parties to the contract and their role, the duration of the employment relationship, and the
remuneration payable by the employer to the employee.
24. The Single Judge also recalled the content of art. 13 par. 5 of the Procedural Rules (March
2023 edition), according to which a party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof. With this in mind, the Single Judge deemed that
it was up to the Claimant to prove that the employment relationship, on the basis of which
he claimed outstanding remuneration and compensation for breach of contract from the
Respondent, indeed existed.
25. In this context, the Single Judge turned his attention to the documentation brought forward
by the parties and acknowledged that, while the Offer indeed identified the parties, the
object, and duration of the employment relationship in question, and the remuneration to
be provided in exchange for services, the limited evidence in the file nevertheless cast
doubt as to the existence of a valid and binding agreement. As established in the DRC’s
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REF. FPSD-14620
more recent jurisprudence, the existence of signatures on the document in question are
an important but not indispensable element to establish its valid and binding nature.
However, a fully countersigned document is strong evidence of the parties’ mutual consent
and intention to enter into a contract. Conversely, here, the Single Judge recalled that the
Offer only bore the Claimant’s signature.
26. The Single Judge further highlighted that the Claimant did not establish any conclusive
conduct that could be considered as evidence of the intent of both parties to conclude a
contract. More specifically, the Single Judge underscored that the file did not contain proof
of any kind of consent or even acknowledgement from the Respondent that there was ever
an interest in the Claimant’s services. In this respect, the Single Judged deemed the
evidence regarding the WhatsApp calls was inconclusive.
27. Furthermore, the Single Judge took note of the fact that there was no evidence of prior
negotiations or correspondence with the Respondent. In particular, the Single Judge
recalled the Claimant’s contention that he received the Offer from the Respondent, signed
and returned it, but no supporting evidence was adduced in this regard.
28. The Single Judge also recalled that the document in question was in fact entitled “Offer”
and consisted of a very short document with only a handful of terms, not including items
such as detailed player obligations or other terms that are indicative of a binding
employment relationship between a club and a player.
29. In light of the above and after duly weighing the evidence on file, the Single Judge
understood that the Claimant did not meet his burden of proof in order to demonstrate
that the document entitle “Offer” was indeed a valid and binding contract concluded with
the Respondent (nor at least with its consent). In particular, the Single Judge deemed that
the player could not establish, based on substantial evidence, that he adopted the
reasonable precautions that could be expected from him when entering a labour
relationship such as the one supposedly entailed by the Offer. Therefore, the Single Judge
decided that no valid and biding employment contract had been concluded between the
Respondent and the Claimant and the latter’s claim had no legal basis.
30. In light of the foregoing reasons, the Single Judge decided that the claim shall be rejected.
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.
pg. 7
REF. FPSD-14620
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 its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-14620
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Layth Ali Abdalrahim Kharoub, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14620
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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