Labour Disputes
Texto da decisão
REF. FPSD-15414
Decision of the
Dispute Resolution Chamber
passed on 8 October 2024
regarding an employment-related dispute concerning the player Jassim
Masud Mohammed
BY:
Frans DE WEGER (The Netherlands), Chairperson
Peter LUKASEK (Slovakia), Member
Oleg ZADUBROVSKIY (Russia), Member
CLAIMANT:
Jasim Masud Mohammed, Ghana
Represented by Mehdi Ghribi
RESPONDENT:
El Gouafel Sport De Gafsa, Tunisia
pg. 2
REF. FPSD-15414
I. Facts of the case
1.
On 28 September 2023, the Ghanian player, Masud Jassim Mohammed (hereinafter: the
Claimant or Player), and the Tunisian club, El Gouafel Sport de Gafsa (hereinafter: the
Respondent) signed an employment contract (hereinafter: the Contract) valid as from 28
September 2023 until 30 June 2026.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant inter
alia the following amounts:
3.
•
DT 1,000 per month due at the end of every month;
•
DT 10,000 as performance bonus due in 3 instalments;
•
Performance bonuses and other benefits set out in the club’s internal regulations
approved by the Tunisian Football Federation (hereinafter FTF);
•
A flight ticket (round trip) Tunis- Ghana.
By correspondence dated 6 July 2024, the Claimant put the Respondent in default stating
the following:
•
The Player has only received one salary;
•
The Player has not received the rest of his salaries or his bonus for the season
2023/2024;
•
The Club did not arrange his visa and therefore, the Player was left in Tunisia in an
illegal situation;
•
The Club refused to pay the flight ticket of the Player to return to Ghana, and
consequently, he has to pay it himself.
4.
The Claimant gave a 15-day deadline to the Respondent to comply with their default.
5.
Allegedly, on 23 July 2024, the Claimant unilaterally terminated his contract based on the
provisions of art. 14 bis of the Regulations. The Player reiterated the motives expressed in
the default notice and informed the Club that he terminates the contract and will lodge a
claim before FIFA.
pg. 3
REF. FPSD-15414
II. Proceedings before FIFA
6.
On 31 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
7.
The Claimant requested the following request for relief:
•
TD 9,000 for the salaries from November to July 2024 (TD 1,000x 9) and 5% interest
as from their respective due date until the date of effective payment;
•
TD 10,000 as performance bonus for the sporting season 2023-2024;
•
TD 43,000 as compensation for breach of contract with just cause and 5% interest
as from their respective due dates until the date of effective payment;
•
USD 3,754 for the plane ticket from Tunis to Ghana;
•
USD 5,000 for the legal fees;
•
Sporting sanctions to be imposed to the Club.
b. Position of the Respondent
8.
Despite being invited to do so, the Respondent did not reply to the claim.
pg. 4
REF. FPSD-15414
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
9.
First of all, the Dispute Resolution Chamber (hereinafter: the 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 31 July 2024 and submitted for decision on 8
October 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.
10. Furthermore, 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 (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 Ghanaian player
and a Tunisian club.
11. 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 (June 2024 edition), and
considering that the present claim was lodged on 31 July 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
12. 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
13. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
pg. 5
REF. FPSD-15414
i. Main legal discussion and considerations
14. The Chamber then moved to the substance of the matter, and acknowledged that it its task
was to determine (i) whether the Player had just cause to terminate his contract and (ii)
which amounts remained outstanding at the date of termination.
15. The DRC noted that the Parties concluded an employment contract valid from 28
September 2023 until 30 June 2026.
16. Moreover, the DRC observed that on 23 July 2024, the Player terminated the employment
contract for overdue payables.
17. Regarding the allegation of just cause to terminate the employment contract, and as a
preliminary remark, the Chamber observed that the Player has provided evidence of having
put the Club in default and having sent a termination letter unilaterally terminating the
contractual relationship. Nonetheless, these correspondences are not dated.
18. Therefore, the DRC had to analyse and determine when the above correspondences were
sent. Firstly, regarding the default notice, the Player alleged that such notice was sent on 6
July 2024. The Chamber observed that this date was also mentioned in the termination
letter, and it has not been disputed by the Club. Specifically, the termination letter
mentions the following:
“As a result, the Player sent a formal notice to the club dated 06/07/2024, demanding payment
of the sums due, i.e. 18,000 Tunisian dinars, representing unpaid wages (from November 2023
to June 2024) as well as the performance bonus for the 2023/2024 season.” (free translation
from French)”.
19. In view of the above, the Chamber considered that the default notice was sent on 6 July
2024 as alleged by the Player.
20. Secondly, regarding the termination letter, the Chamber noted that the Player asserts that
the letter was sent on 23 July 2024, i.e., more than 15 days after issuing the default notice
to the Club. Given that the Club has not contested the Player’s claim regarding the letter
being sent by email on 23 July 2024, the Chamber considered this date should be taken
into account.
21. Having established the foregoing, the Chamber recalled the Player’s allegation that he had
not received his remuneration corresponding to the months of November 2023 to July
2024, i.e., 8 months’ salaries, and has provided written evidence of having put the
Respondent in default on 6 July 2024, i.e., at least 15 days before unilaterally terminating
the Contract on 23 July 2024.
pg. 6
REF. FPSD-15414
22. In this context, the Chamber analysed the question of whether the Player had just cause to
terminate his employment contract with the Respondent.
23. In this regard, the Chamber referred to the wording of art. 14 bis 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).
24. In the case at hand, the Chamber concluded that the formal requirements of art. 14 bis
par. 1 of the Regulations have been fulfilled, meaning that (i) at least two monthly salaries
were due on the date of termination and (ii) the Player had notified the Club in writing that
it is in default and granted at least 15 days to fully comply with their financial obligations.
25. Furthermore, the DRC noted that in accordance with the principle of the burden of proof
established in art. 13 par. 5 of the Procedural Rules, it is for the Club to demonstrate that
they have complied with its financial obligations towards the Player, as the Player cannot
be asked to prove that he did not receive the payment.
26. Consequently, the Chamber concluded that, based on art. 14 bis par. 1 of the Regulations,
the Player had just cause to terminate his employment contract with the Club.
27. Secondly, regarding the outstanding amount at the date of termination, the Chamber
observed that the Player requested the payment of the performance bonus for the season
2023/2024 of the amount of TD 10,000. According to the employment contract, the
performance bonus of TD 10,000 is paid during the season in 3 instalments. However, the
exact due dates of the performance bonus are not specified in the employment contract
or in the claim submitted by the Player.
28. In this regard, the DRC noted that based on the transfer seasons entered in TMS by the
FTF, the season 2023/2024 ended on 30 June 2024. Therefore, the Chamber deemed that
as the Player terminated his Contract after the end of the season, he is entitled to receive
the performance bonus. However, as the due dates are not specified, the Chamber decided
to consider as due date, the last day of the season, i.e. 30 June 2024.
29. Finally, regarding the flight ticket, the Player requested the reimbursement of the flight
ticket from Tunis, Tunisia to Accra, Ghana of the amount of HK 3,754. The Chamber noted
that according to the employment contract, the Player was entitled to one fight ticket
(round trip) to Ghana. The Player provided evidence that the flight ticket was purchased on
27 June 2024 at the prince of HK 3,754.
30. Consequently, in line with the principle of pacta sent servanda the Chamber decided to
award the Player the amount of HK 3,754 as reimbursement for the flight ticket he bought
to travel back home.
pg. 7
REF. FPSD-15414
ii. Consequences
31. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
32. 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 9 monthly
salaries under the contract (i.e. from November 2023 to July 2024), amounting to DT 9,000
(i.e., DT 1,000 x 9) as well as the performance bonus amounting to TD 10,000 and the flight
ticket of HK 3,754.
33. 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 amounts
which were outstanding under the contract at the moment of the termination, i.e., TD
19,000 (i.e. TD 1,000 times 9, TD 10,000) and HK 3,754.
34. 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. over the amount of TD 9,000 as follows:
•
•
•
•
•
•
•
•
•
5% interest p.a. over the amount of TD 1,000 as from 1 December 2023 until the date of
effective payment;
5% interest p.a. over the amount of TD 1,000 as from 1 January 2024 until the date of
effective payment;
5% interest p.a. over the amount of TD 1,000 as from 1 February 2024 until the date of
effective payment;
5% interest p.a. over the amount of TD 1,000 as from 1 March 2024 until the date of
effective payment;
5% interest p.a. over the amount of TD 1,000 as from 1 April 2024 until the date of
effective payment;
5% interest p.a. over the amount of TD 1,000 as from 1 May 2024 until the date of
effective payment;
5% interest p.a. over the amount of TD 1,000 as from 1 June 2024 until the date of
effective payment;
5% interest p.a. over the amount of TD 1,000 as from 1 July 2024 until the date of
effective payment;
5% interest p.a. over the amount of TD 1,000 as from 24 July 2024 until the date of
effective payment.
35. 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
pg. 8
REF. FPSD-15414
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.
36. 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.
37. 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.
38. 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 TD 23,000 (i.e., months of August 2024 until 30 June 2026)
serves as the basis for the determination of the amount of compensation for breach of
contract.
39. 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.
40. However, the DRC verified that the Player has not signed a new employment contract and
therefore, the compensation due to the Player will not be mitigated.
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 23,000 to the Player (i.e. salaries from August 2024 until 30 June 2026), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
pg. 9
REF. FPSD-15414
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 24 July 2024 until the date of effective payment.
iii. Consequences of art. 17 par. 4 of the Regulations
43. In continuation, the Chamber focused on the further consequences of the breach of
contract in question and, in this respect, it addressed the question of sporting sanctions
against the club in accordance with art. 17 par. 4 of the Regulations. The cited provision
stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall
be imposed on any club found to be in breach of contract during the protected period.
44. In this respect, the Chamber referred to item 7 of the “Definitions” section of the
Regulations, which stipulates inter alia that the protected period shall last “for three entire
seasons or three years, whichever comes first, following the entry into force of a contract, where
such contract is concluded prior to the 28th birthday of the professional, or two entire seasons
or two years, whichever comes first, following the entry into force of a contract, where such
contract is concluded after the 28th birthday of the professional”.
45. In this respect, the Chamber took note that the Player was born on 12 July 2003 and the
relevant contract with the club was concluded on 28 September 2023. Furthermore, the
Chamber noted that the Player terminated the contract with just cause on 23 July 2024.
The breach of contract by the club had therefore occurred within the protected period.
46. Furthermore, the Chamber noted that the club had already been held liable of breaching
other players’ contracts without just cause in several recent occasions, in particular in cases
FPSD-15078, FPSD-14951 and FPSD-15308.
47. Consequently, the Chamber decided that, by virtue of art. 17 par. 4 of the Regulations, the
club shall be sanctioned with a ban from registering any new players, either nationally or
internationally, for two entire and consecutive registration periods.
48. For the sake of completeness, the Chamber recalled that pursuant to art. 24 par. 3 lit. a) of
the Regulations, the consequences of failure to pay the relevant amounts in due time may
be excluded if the Football Tribunal has imposed a sporting sanction on the basis of art. 17
in the same case. Consequently, the Chamber confirmed that the consequences of failure
to pay the relevant sums in due time provided for in art. 24 of the Regulations in the present
case and that, should the Club fail to comply with this decision in due time, it would be for
the FIFA Disciplinary Committee to take the necessary measures in accordance with the
FIFA Disciplinary Code.
pg. 10
REF. FPSD-15414
d. Costs
49. 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.
50. 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.
51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-15414
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jassim Masud Mohammed, is partially accepted.
2.
The Respondent, El Gouafel Sport De Gafsa, must pay to the Claimant the following
amount(s):
- TD 9,000 as outstanding remuneration plus 5% interest p.a. as follows:
−
5% interest p.a. over the amount of TD 1,000 as from 1 December 2023 until the date
of effective payment;
−
5% interest p.a. over the amount of TD 1,000 as from 1 January 2024 until the date
of effective payment;
−
5% interest p.a. over the amount of TD 1,000 as from 1 February 2024 until the date
of effective payment;
−
5% interest p.a. over the amount of TD 1,000 as from 1 March 2024 until the date of
effective payment;
−
5% interest p.a. over the amount of TD 1,000 as from 1 April 2024 until the date of
effective payment;
−
5% interest p.a. over the amount of TD 1,000 as from 1 May 2024 until the date of
effective payment;
−
5% interest p.a. over the amount of TD 1,000 as from 1 June 2024 until the date of
effective payment;
−
5% interest p.a. over the amount of TD 1,000 as from 1 July 2024 until the date of
effective payment;
−
5% interest p.a. over the amount of TD 1,000 as from 24 July 2024 until the date of
effective payment.
- TD 10,000 as outstanding remuneration;
- HK 3,754 as outstanding remuneration;
- TD 23,000 as compensation for breach of contract plus 5% interest p.a. as from 24 July
2024 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
pg. 12
REF. FPSD-15414
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form within 30 days of notification of this
decision.
5.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the next two entire and consecutive registration periods following the
notification of the present decision.
6.
If the aforementioned sum plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and formal decision.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-15414
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14