Labour Disputes
Texto da decisão
REF FPSD-8252
Decision of the
Dispute Resolution Chamber
passed on 01 February 2023
regarding an employment-related dispute concerning
the player Haithem Layouni
BY:
Frans de Weger (the Netherlands), Chairperson
Roy Vermeer (the Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Haithem Layouni, Tunisia
Represented by Mr Anis Ben Mime
RESPONDENT:
El Masry, Egypt
Page 2
REF FPSD-8252
I. Facts of the case
1.
On 27 January 2022, the Tunisian player, Haithem Layouni (hereinafter: the Claimant), and
the Egyptian club, El Masry (hereinafter: the Respondent) signed an employment contract
(hereinafter: the Contract) valid as from the date of signature until the end of the season
2023-2024 (cf. Transfer Matching System (TMS): 30 June 2024).
2.
In accordance with the Second Clause of the Contract, the Respondent undertook to pay
to the Claimant a total gross sum of USD 475,500 as remuneration over the course of the
Contract, payable in the following instalments:
Season 2021/2022:
-
USD 29,850 by no later than 15 February 2022;
-
USD 4,975 per month on the 15th day of each month between March 2022 and
August 2022;
Season 2022/2023:
-
USD 50,000 on 1 October 2022;
-
USD 15,000 on the first day of each month between November 2022 and August 2023;
Season 2023/2024:
-
USD 54,000 on 1 October 2023;
-
USD 16,200 on the first day of each month until July 2024;
-
USD 16,200 on 31 August 2024.
3.
On 17 October 2022, the Claimant put the Respondent in default of payment of
USD 50,000, corresponding to the seasonal bonus that had fallen due on 1 October 2022.
Furthermore, in the same letter, the Claimant warned the Respondent that he had been
excluded from the team, forced to train alone as opposed to the rest of the team, and
that he could no longer play official matches as the Respondent had not registered him,
and instead five other foreign players, reaching the cap under the domestic registration
rules. The Claimant granted the Respondent a deadline of 15 days to remedy all of the
above-alleged contractual breaches.
4.
On 9 November 2022, in the absence of any reaction from the Respondent, the Claimant
unilaterally terminated the Contract.
Page 3
REF FPSD-8252
5.
On 4 January 2023, the Claimant signed a new Contract with the Libyan club Al Ahly Tripoli
(hereinafter: the New Club), valid as from 5 January 2023 until 4 July 2023 (hereinafter: the
New Contract).
6.
In accordance with the New Contract, the Claimant was entitled to a total remuneration
of USD 52,250 over the entire contractual term.
II. Proceedings before FIFA
7.
On 17 November 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.
According to the Claimant, the Respondent failed to pay the salary for November 2022 in
the amount of USD 15,000, as well as the seasonal bonus of USD 50,000, which had
become payable on 1 October 2022.
9.
Furthermore, the Claimant asserted that he was excluded from the squad, forced to train
alone, and that he was legally prevented from playing because the Respondent registered
the maximum amount of foreign players before him. The Claimant argued that this
constitutes abusive behaviour in the spirit of art. 14 RSTP, giving rise to just cause to
terminate the Contract on 9 November 2022.
10. The requests for relief of the Claimant were, therefore, as follows:
-
Outstanding remuneration in the amount of USD 65,000, plus annual interest of 5%
as from no specific date until the date of effective payment;
-
Compensation in the amount of USD 465,000, allegedly corresponding to the residual
value of the Contract, plus annual interest of 5%, once again as from no specific date.
b. Position of the Respondent
11. Despite having been invited to do so, the Respondent did not submit any reply to the
above claim.
Page 4
REF FPSD-8252
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 17 November 2022 and
submitted for decision on 01 February 2023. Taking into account the wording of art. 34 of
the October 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.
2.
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 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 an Egyptian club.
3.
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 (October 2022
edition), and considering that the present claim was lodged on 17 November 2022, the
October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
4.
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 TMS.
c. Merits of the dispute
5.
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.
Page 5
REF FPSD-8252
i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the basis of the dispute was the lawfulness of the
Claimant’s contractual termination, dated 9 November 2022.
7.
In this respect, the Chamber noted that its task was to establish whether or not the
amounts, which the Claimant alleged as having remained outstanding, were indeed not
paid by the Respondent, and subsequently, whether the termination which occurred on
9 November 2022 was with or without just cause.
8.
In this context, the Chamber firstly remarked that the Respondent had not submitted any
position as to the claim lodged by the Claimant. Thus, the Chamber established that the
allegations and evidence submitted by the latter had remained uncontested for the sake
of the present proceedings (cf. art. 21 par. 1 Procedural Rules).
9.
Having considered the above, the Chamber turned to the question of the allegedly
outstanding amounts – in particular, the seasonal bonus falling due on 1 October 2022,
in the amount of USD 50,000, as well as the salary of November 2022, which had fallen
due on 1 November 2022.
10. As the alleged failure to comply with said contractual obligation was not challenged by
the Respondent, the Chamber firstly concluded that the bonus of USD 50,000 and the
salary of November 2022, in the amount of USD 15,000, could be established as having
remained unpaid, and held that the Respondent is liable to pay those amounts as
outstanding remuneration to the Claimant.
11. Subsequently, the Chamber entered the analysis of whether or not the Contract had been
terminated with or without just cause by the Claimant.
12. In this respect, the Chamber revisited the wording of art. 14 par. 1 of the Regulations,
according to which a contract may be terminated by either party without consequences
of any kind where there is just cause.
13. The Chamber recalled that the Respondent had failed to comply with its financial
obligations under the Contract by not paying a total amount of USD 65,000, which
corresponded to a pro-rata value of more than four monthly salaries.
14. Furthermore, the Chamber too note of the allegation that the Respondent had excluded
the Claimant from training sessions, and prevented him to play in official matches, by
failing to register him. In this respect, the Claimant had provided evidence of the
Respondent’s squad for the respective season, which did not include the Claimant, as well
Page 6
REF FPSD-8252
as a warning letter addressed towards the Respondent, in which said alleged exclusion
had been condemned by the Claimant. Neither of these submissions were contested by
the Respondent.
15. Having considered the totality of circumstances in the present case, that a total sum of
USD 65,000 had remained unpaid, as well as the fact that the Claimant had been excluded
and isolated from the squad by the Respondent, the Chamber concluded that the
Respondent had been in breach of the Contract in a severe and consistent manner so as
to warrant the premature termination thereof by the Claimant as an ultima ratio measure.
16. Therefore, the Chamber held that the Contract was terminated with just cause by the
Claimant on 9 November 2022.
ii. Consequences
17. 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.
18. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, amounted to USD 65,000.
19. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amount which was outstanding under the contract at the moment of the termination, i.e.
USD 65,000.
20. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from 17 November 2022 until the
date of effective payment.
21. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent 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.
Page 7
REF FPSD-8252
22. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the 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.
23. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
24. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the former 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 351,000 (i.e. the residual value of the
Contract) serves as the basis for the determination of the amount of compensation for
breach of contract.
25. In continuation, the Chamber verified as to whether the Claimant 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.
26. Indeed, the Claimant found new employment with the New Club. In accordance with the
New Contract, which overlapped entirely with the term of the Contract at the basis of the
present dispute, the Claimant was entitled to receive a total amount of USD 52,250. Thus,
the Chamber held that the Claimant was able to mitigate his damages by said amount.
27. 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 Respondent, and
therefore decided that the Claimant shall receive additional compensation.
Page 8
REF FPSD-8252
28. In this respect, the Chamber decided to award the amount of additional compensation of
USD 45,000, i.e. three times USD 15,000 or the monthly remuneration of the Claimant in
the overlapping period between the Contract and the New Contract.
29. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay the
amount of USD 343,750 to the Claimant (i.e. USD 351,000 minus USD 52,250 plus
USD 45,000), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
30. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as of 17 November 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
Page 9
REF FPSD-8252
d. Costs
36. 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.
37. 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.
38. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 10
REF FPSD-8252
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Haithem Layouni, is partially accepted.
2.
The Respondent, El Masry, has to pay to the Claimant, the following amount:
- USD 65,000 as outstanding remuneration plus interest of 5% p.a. as from
17 November 2022 until the date of effective payment;
- USD 343,750 as compensation for breach of Contract without just cause plus
interest of 5% p.a. as from 17 November 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 article 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
Page 11
REF FPSD-8252
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
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
Page 12