Labour Disputes
Texto da decisão
REF. FPSD-13018
Decision of the
Dispute Resolution Chamber
passed on 4 April 2024
regarding an employment-related dispute concerning
the player Omar Mansouri
COMPOSITION:
Lívia SILVA KÄGI (Brazil/Switzerland), Deputy Chairwoman
Stella MARIS JUNCOS (Argentina), member
Jorge GUTIÉRREZ (Costa Rica), member
CLAIMANT:
Omar Mansouri, Morocco
Represented by Mohammed Moujtahid and Mohammed Ghazi
RESPONDENT:
Darnes, Libya
Represented by Sport 7 Sàrl/Ltd
pg. 2
REF. FPSD-13018
I. Facts of the case
1.
On an unspecified date, the Moroccan player, Omar Mansouri (hereinafter: the Claimant or
the player) and the Libyan club, Darnes (hereinafter: the Respondent 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.
The player indicated in his claim that the signed copy of the contract was sent on 12 August
2023, a fact which remained uncontested by the club.
3.
In accordance with clause 2 of the contract, the player was entitled to a total amount of
USD 50,000 payable as follows: 50% as advance payment and the other 50% distributed as
salary for the season 2023/2024.
4.
Clause 6 of the contract reads as follows:
“The contract is not binding on Darnes Club unless the player arrives in Libya and
passes the health examination”.
5.
In accordance with information retrieved from the Transfer Matching System (TMS), the
Libyan season 2023/2024 started on 1 October 2023 and would end on 1 July 2024.
6.
On 10 September 2023, a storm named “Daniel” reached Libya, causing severe flooding in
multiple areas. The city of Derna, where the club is headquartered, was one of the most
affected cities.
7.
On 16 October 2023, the Libyan Football Federation issued a decision in which it stipulated
the following (cf. Decision no. 75, year 2023):
“Preamble
Since [the Respondent] was one of the members of the General Assembly of the
Libyan Football Federation participating in The Federation's official competitions, and
as a result of the disaster that befell the city of Derna, which caused ... Catastrophic
floods led to the loss of the lives of a number of administrative and sports personnel
belonging to the club, causing serious damage to the club's facilities and stadium.
Whereas a case-o force majeure has occurred, which makes it necessary to take action
Legal protection of the rights of the club and players. Therefore it was decided the
following:
Article (1)
The preamble is an integral part of this decision.
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REF. FPSD-13018
Article (2)
Approval to freeze [the Respondent]’s participation in all official approved
competitions for all categories in the 2023/2024 sports season will last for one sports
season, while maintaining the same duration The Premier League competition in
which it is ranked once its activity resumes.
Article (3)
The status of professional players registered with [the Respondent] shall be settled
by agreement between the two parties. in accordance with the provisions of the
players' status and transfer regulations.
Article (4)
Amateur players registered with [the Respondent] are allowed to register and play
temporarily in the competitions of the 2023/2024 sports season with other clubs they
wish to play with according to their categories, provided that they return to their
original club in the following sports season.
Article (5)
[The Respondent] team will not be replaced in the Premier League competition in
which it is ranked with another team
Article (6)
This decision is effective from the date of its issuance, and all relevant authorities must
implement it.”
8.
On 4 November 2023, the Claimant put the Respondent in default and requested: (i) the
club to contact the player without delay; (ii) to provide the player with a single ticket
(Casablanca-Tripoli) and an entry visa to Libyan territory; (iii) to provide proof of the player's
qualification for the current season and (iv) to pay the total amount of USD 25,000; setting
a time limit of 15 days in order for the club to fulfil its obligations.
9.
On 18 November 2023, the legal representative of the Respondent replied to the player the
following (quoted verbatim):
“I inform you that I have been appointed by [the Respondent] to represent its
interests. A copy of the corresponding power of attorney is attached.
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REF. FPSD-13018
My client is returning to you in response to your letter of formal notice dated
November 4th, 2023. As you know, the town of Darnes was severely affected by the
weather last September. This unprecedented bad weather had dramatic
consequences for the town's residents, and especially for the members of [the
Respondent], a number of whom died during the storm.
This situation represents a case of "force majeure", which has meant that the club has
no longer had the staff available to continue to deal with the club's day-to-day
business, and that the first team has not been able to compete in the 2023-2024
professional championship, from which it will be absent until the end, as certified by
the Libyan Football Federation.
These are the reasons why your client has had no further contact.
Consequently, my client regrets to inform you that he has been unable to honour the
contract he entered into with your principal, which is terminated for the just reason
of "force majeure". Your principal is thus free to sign wherever he wishes, without
compensation.
Today, the club is trying to recover from the catastrophic situation it has suffered and
to start up again.”
10. On 25 January 2024, the Libyan Football Federation issued the following letter addressed
to the FIFA general secretariat:
“ln my capacity as General Secretary of Libyan Football Federation I would like to
confirm to you that due to the flooding that hit the city of Derna in the eastern region
which is the home of [the Respondent] which was totally demolished and some of its
players and officials have passed away.
That [the Respondent] did not register or contract with any player of both national
and international level on season 2023/2024.”
11. The player confirmed to FIFA that he remained unemployed to date.
II. Proceedings before FIFA
12. On 12 December 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
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REF. FPSD-13018
13. In his claim, the player argued that the club breached the contract by failing to comply with
his financial and administrative obligations towards the player:
-
The player considered that the club had "abandoned" him even before the natural
disaster caused by storm “Daniel”; no justification was given for the non-payment of
the advance payment.
-
The natural disaster occurred one month after the signature of the contract and the
club failed to perform the contract during that period.
-
It was not the floods that prevented the club from fulfilling its obligations, but its lack
of interest.
-
Even if the legal concept of force majeure was accepted, it would have to be
interpreted and accepted in a very restrictive way, and the club would not be able to
prove that the case in question constituted such a situation.
14. The player as the decision issued by the Libyan Football Federation, the player indicated
that it did not entitle the club to terminate the contract. Moreover, the player would not be
responsible of an external decision rendering the player’s work impossible.
15. In view of the above, the Claimant considered that the club terminated the contract without
just cause.
16. The Claimant requested the following relief:
-
To determine that the club terminated the contract without just cause.
-
To condemn the club to pay the player USD 50,000 plus 5 % interest as from the due
dates: USD 22,500 as from 12 August 2023 and USD 22,500 as from the date of the
claim.
-
To apply sporting sanctions.
b. Position of the Respondent
17. In its reply, the club referred to the events that occurred in September 2023, specifically
the devastating storm that hit the town of Derna and the surrounding region. The club
contended that this event led to a complete halt in club activities, the destruction of
facilities, and the tragic loss of members and players, including the person in charge of
media and FIFA Legal portal.
18. The club asserted that these circumstances constituted a force majeure event, rendering
impossible for it to fulfil any contractual commitments. The club emphasized that despite
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REF. FPSD-13018
its best intentions, the club was completely unable to meet any commitments to the
Claimant due to the chaos caused by the storms, which paralyzed communication and any
potential activity. Furthermore, the club highlighted that they were unable to participate in
the Libyan championship.
19. In addition, the club stressed that “since the signing of the contract, which took place between
absentees, via WhatsApp, the Respondent had no further information to pass on to the Claimant
until September 2023, as this was a holiday period during which there were no training sessions
or matches; the Libyan football league was on summer break, before the start of the new season
and the first planned training sessions.”
20. Moreover, in the Respondent’s view, the player's persistent demands for compensation
demonstrate a lack of compassion for the tragic events that befell the club. The club further
highlighted that the player had the opportunity to seek alternative options, such as signing
up with another club, in light of the force majeure situation. By not actively pursuing other
opportunities and instead focusing on extracting money from the club, the player's
intentions can be called into question.
21. In view of the above, the Respondent provided the following conclusions:
“The Claimant Mr Omar Mansouri's Claim is declared null and void, and then rejected.
Darnes Sport Club, the Respondent, is not liable to the Claimant for any additional
liability or any other sum of money.
All costs of the proceedings of the Respondent are to be paid in full by the Claimant.”
22. The club presented various documents as evidence such as journal news’ posts, a death
certificate, WhatsApp communications showing information as to the persons who died,
and how building facilities ended.
c. Rejoinder of the Claimant
23. In his rejoinder, the Claimant indicated the following:
-
With regard to the breach of contract and the player's lack of interest, he considered
that the club has not provided any element justifying the breach of contract since 12
August 2023. The "holidays" referred to by the club can only prove that the decision
to dispense with the player's services was taken before 10 September 2023.
-
As to the mandatory arrival of the player to Libya, the player stressed that it was the
club that had to do all the due diligence in order to support the player to move to
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REF. FPSD-13018
Libya. As to the medical test, he referred to art. 18 parr. 4 of the Regulations on the
Status and Transfer of Players (RSTP).
24. The player confirmed his request for relief.
d. Final comments of the Respondent
25. In its final comments, the Respondent raised the following arguments:
-
As the lack of contact with the player since 12 August 2023, the Respondent
considered that it was under no obligation to communicate anything during the
holiday period.
-
“At no point does the Claimant demonstrates to what extent the Respondent failed in its
obligations or what steps it took that were lacking during the period from August 12th
until the date of the natural disaster on September 10th, 2023, since he never contacted
the Respondent during that period either. This demonstrates that the Claimant has failed
in its obligation to prove the facts it alleges in order to infer its right”.
-
The first attempt of the Claimant to the club was on 4 November, i.e., more than a
month and a half after the natural disaster. “This fact raises serious questions as to
whether, on the one hand, the Claimant was really properly informed about the
Respondent’s situation or, on the other hand, whether he was acting in good faith in
pretending to know nothing about this disaster, even though the natural disaster was
public knowledge and reported by the media worldwide, as was demonstrated in the
Response to the Claim dated January 25th.”
-
The Respondent could not foresee the natural disaster, and therefore the breach of
the contract was not premeditated. “In any event, the contract could not have begun
because not all the conditions had been met, such as the Claimant's presence in Libya
and the completion of a satisfactory medical examination.”
-
“The Respondent cannot be accused of failing to comply with the decision of the Libyan
Football Federation dated October 16th, 2023, since it first never prevented the Claimant
from signing with another club during the current season”.
-
“The Respondent found itself in a situation of “force majeure” following the natural
disaster it suffered, and is consequently unable to continue its activities, as some
members are no longer available due to death.”
-
The decision of the Libyan Football Federation was clear and the Respondent would
not participate in the Libyan Championship 2023/2024.
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REF. FPSD-13018
-
“The Respondent has, therefore, and even if it should, no solution to propose to the
Claimant in relation to the employment contract in question, being unable to continue his
activity due to “force majeure”. The Respondent is therefore not responsible for the fact
that the Claimant's work as a professional football player has become unfeasible.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 12 December 2023 and
submitted for decision on 4 April 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.
27. 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 Regulations on the Status and Transfer of Players (February 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 Moroccan
player and a Libyan club.
28. 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 (February 2024 edition), and
considering that the present claim was lodged on 12 December 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
29. 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
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REF. FPSD-13018
30. 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.
i. Main legal discussion and considerations
31. 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 validity of the contract
and whether the Respondent had a valid justification for not having complied with its
financial obligations.
32. In this context, the Chamber first turned its attention to the validity of the contract. The
Chamber noted that the Respondent disputes it, alleging that the player failed the medical
examination and that he did not arrive in Libya, in accordance with clause 6 of the contract.
33. In this context, the Chamber first reminded the parties of the clear and explicit wording of
art. 18 par. 4 of the Regulations, according to which the validity of an employment contract
cannot be made subject to a successful medical examination and/or the grant of a work
permit. 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.
34. Based on the foregoing, the Chamber rejected the Respondent’s objection to the validity of
the contract and determined that the latter is valid and binding on the parties.
35. Then, the Chamber turned its attention as to the failure of the execution of the contract
and took note of the Respondent’s argumentation that it was not able to fulfil its
contractual obligations due to the fact of the storm “Daniel” which reached Libya, causing
severe flooding, and this situation corresponded to a force majeure, justifying its default.
36. Having carefully analysed the case file, the Chamber observed the following undisputed
facts:
-
Since the signature of the contract, none of the parties contacted each other until
the default letter sent by the player on 4 November 2023 (almost three months later
after the signature of the contract).
-
On 10 September 2023 a natural disaster occurred in Libya and the city of Derna,
where the club is located, was one of the most affected cities.
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REF. FPSD-13018
-
The club would not participate in the season 2023/2024.
-
The club’s premises were affected, and members of the team passed away.
-
As per TMS, the Libyan season 2023/2024 started on 1 October 2023.
37. In this respect, the Chamber was in agreement that the natural disaster was an
extraordinary and unforeseeable event that occurred beyond the sphere of activity of club
and that imposed itself on it in an irresistible manner. However, and before analysing
whether the natural disaster was to be considered as a case of force majeure from a legal
qualification, the Chamber first analysed the behaviour of the parties since the signature
of the contract.
38. In this context, the Chamber noted that none of the parties showed the expected diligence
in demonstrating that, in spite of the circumstances, they were interested in executing the
contract or in finding a solution as to their employment relationship. From the
documentation on file, it can be seen that none of the parties has contacted the other in
order to start with the process in executing the contract.
39. In particular, the Chamber took note that:
-
Between 12 August 2023 and 1 October 2023 (i.e., date of start of the season
2023/2023), the parties did not have any type of communication.
-
The player only contacted the club almost three months after the contract would
have started and two months after the natural disaster occurred.
40. In the absence of any contact between the parties within a reasonable period of time after
the signing of the contract, the Chamber concluded that despite having a valid contract,
the contract was never executed by either party since the signature. None of the parties
took the position on performing their obligations under the contract: the club did not
contact the player since the signature of the contract, while the player also did not engage
with the club until 3 months after its execution. Consequently, the Chamber decided that
the contract was never performed and therefore, no outstanding remuneration and
compensation shall be awarded to the player, in that both parties mutually departed from
the execution of the contract.
41. In view of all the above, the Chamber fully rejected the claim of the Claimant.
d. Costs
42. 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-13018
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
43. 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.
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REF. FPSD-13018
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Omar Mansouri, 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-13018
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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