Labour Disputes
Texto da decisão
REF FPSD-7038
Decision of the
Dispute Resolution Chamber
passed on 24 November 2022
regarding an employment-related dispute concerning the player
Adi Mehremic
BY:
Frans de Weger (the Netherlands), Chairperson
Peter Lukasek (Slovenia), member
Jerôme Perlemuter (France), member
CLAIMANT:
Adi Mehremic, Bosnia and Herzegovina
Represented by Mr Çağlar Akoğlu
RESPONDENT:
Maccabi Petah Tikva Football Club, Israel
Represented by Nir Inbar Sports Law
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REF FPSD-7038
I. Facts of the case
1.
On 20 January 2022, the Bosnian player, Adi Mehremic (hereinafter: the Claimant), and the
Israeli club, Maccabi Petah Tikva Football Club (hereinafter: the Respondent) signed an
employment contract valid as from 17 January 2022 until 31 May 2022 (hereinafter the
Contract).
2.
In accordance with art. 6 of the Contract, the Respondent undertook to pay to the
Claimant inter alia a gross monthly remuneration of NIS 44,000, the equivalent of
NIS 35,000 net.
3.
Furthermore, in accordance with art. 9 of the Contract, the Respondent undertook to
provide the Claimant with an “apartment and a car for his using”.
4.
Moreover, in accordance with art. 7 of the Contract, it was agreed as follows:
“The parties hereby agree that differences of opinion between the Club and player or between
the Player and the club, in everything relating to the directives of this Agreement, shall be
decided by an arbitrator, who will be appointed by virtue of the power of the Association’s
Arbitration Institute Codex. The arbitration will be held in accordance with the directives of the
Association’s Arbitration Institute Codex.”
5.
On 4 February 2022, the Claimant requested a representative of the Respondent to talk
to the Sporting Director, in order to deduct NIS 3,000 from his salary as a deposit for the
apartment he had allegedly found. The representative confirmed that he would ask
whether this was possible.
6.
On 11 May 2022, the Claimant informed the Sporting Director of the Respondent that he
will be departing Israel early and that he will not be present to collect his salary check as
usual. He further outlined that, with regards to the apartment, he had to pay “4500 extra
every month, because the club didn’t find anything cheaper”. In reply thereto, the
Respondent asked what the Claimant suggests should happen regarding the apartment,
and the Claimant replied that he will speak to a different representative of the
Respondent to clarify the situation.
7.
On 21 June 2022, the Claimant and the Respondent exchanged WhatsApp messages, in
which the former requested an exemption for the rental charge for the month of
May 2022 and the Respondent allegedly offered the Claimant an “end of contract
confirmation” document, confirming the total amount due for said month, minus the
appropriate rental charge:
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8.
-
(Sporting director of the Respondent): “They want to transfer your salary, so I
will send you a form to sign and please send me your bank account details in Israel”
-
(Claimant): “It is 36k; Tell them; The apartment I don’t have last month; it was 3
months 10500 shekel; and last check was for 500 shekel; So I need full salary”
On 8 August 2022, the Claimant put the Respondent in default of payment of the amount
of NIS 20,250 corresponding to the deductions made by the Respondent from the
monthly salaries between January 2022 and May 2022 on account of the costs for the
apartment. The Claimant provided the Respondent with a 3-day deadline to remedy the
alleged breach.
II. Proceedings before FIFA
9.
On 12 August 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
10. According to the Claimant, the Respondent made the following deductions to the monthly
remuneration instalments, lacking any contractual right to do so:
-
NIS 2,250 for the 15 days worked in January 2022;
-
NIS 4,500 for February 2022;
-
NIS 4,500 for March 2022;
-
NIS 4,500 for April 2022;
-
NIS 4,500 for May 2022.
11. In total, the Claimant submitted that the Respondent unlawfully deducted NIS 20,250
from his salary.
12. In accordance with the general legal principle of pacta sunt servanda, the Claimant is
requesting payment of EUR 5,872.50, the approximate conversion of the unpaid amount
of NIS 20,250, plus interest at an unspecified rate as from the due dates of the partially
unpaid monthly instalments.
13. Lastly, the Claimant requested that legal and procedural costs be paid by the Respondent.
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b. Position of the Respondent
14. In its reply, the Respondent firstly challenged FIFAs competence to hear the present
dispute, arguing that exclusive jurisdiction was conferred on the Israeli NDRC by virtue of
art. 7 of the Contract.
15. Furthermore, the Respondent outlined that it wanted to accommodate the Claimant in a
standard apartment in the city of Petah Tikva, which was occupied by another foreign
player who previously played for the Respondent, but the Claimant allegedly refused to
live there and requested to stay in a more expensive apartment in the proximate city of
Herzeliya, which he found through an intermediary. Allegedly, in the presence of said
intermediary, the Claimant and the Respondent agreed that, due to the fact that the
apartment was more than double in price from what he was previously offered to live in,
a deduction of NIS 4,500 per month shall be made from his salary.
16. Furthermore, the apartment required a down-payment of NIS 3,000, which was paid by
the Respondent and which was deducted from the February 2022 salary of the Claimant,
to which the latter agreed.
17. Furthermore, the Respondent submitted that the bank statements which were submitted
by the Claimant contain comments related to each specific instalment that read:
“- NIS 4,500: Apartment”, which demonstrates that there was clearly an agreement in place
to make such deductions.
18. The Respondent also outlined that the Claimant never raised this issue during the course
of the Contract, further substantiating that it was clear and agreed upon that these
amounts would be deducted.
19. Moreover, the Respondent expressed that, at the end of the Contract, it invited the
Claimant to sign a document confirming the expiration of the Contract and that the
Respondent had no further dues towards the Claimant, and also confirming that the final
salary instalment for the month of May 2022 will be NIS 30,500. In response thereto, the
Claimant allegedly contested the amount, stating that he should not be charged for the
apartment for said month as he was leaving Israel early and was therefore not occupying
it. The Claimant, thus, rejected to sign the document confirming the Contract’s expiration.
20. The Respondent, therefore, requested for the claim to be dismissed, if considered
admissible.
c. Comments of the Claimant / Replica
21. The Claimant firstly asserted that FIFA should be held competent, based on the fact that
the Israeli NDRC does not comply with the obligations set out in FIFA Circular 1010.
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22. The Claimant rejected the allegation that he refused to stay in an apartment provided by
the Claimant, and instead proposed a more expensive one; rather, he argued, the
Respondent failed to find an apartment and the Claimant contacted an agent to find an
apartment for him.
23. In any case, the Claimant argued that he never agreed to any deductions to be made from
his salary, which is demonstrated by the fact that there is no written declaration or
amendment to the Contract to this effect.
24. The Claimant also argued that the witness used by the Respondent is unreliable, as he
was never his official agent and only mandated for one deal – i.e. finding the apartment.
Furthermore, the Claimant pointed out that the agent’s nationality and “good relationship
with the Respondent” further undermine his credibility as a witness.
25. Given that the Claimant was there for only half a season, and did not want to be
considered a “problem maker”, he never raised the issue about the deductions made to
his salary during the term of the Contract. Notwithstanding, the Claimant submitted that
he did raise the issue once with the sporting director of the Respondent, on 11 May 2022,
and that the latter did not object to the reimbursement of the apartment fee as
requested.
26. The Claimant also pointed out that he never requested the amount of NIS 3,000 which
was paid as a deposit for the apartment, and that this point raised by the Respondent is
moot.
27. Lastly, with regards to the document presented to the Claimant during May 2022, the
Claimant outlined that it is unnecessary to sign an “end of contract document”, and that
the Respondent was attempting to lure the Claimant into signing a document which
contained a provision stating that the Respondent had no further dues to the Claimant.
28. Lastly, the Claimant also contested the statement that he attempted to obtain
reimbursement for the rental charge of May 2022.
29. In essence, therefore, the Claimant’s request for relief remained unchanged.
d. Comments of the Respondent / Duplica
30. The Respondent firstly maintained that the Israeli NDRC has exclusive jurisdiction over
the dispute and that the claim should be deemed inadmissible.
31. The Respondent further argued that the absence of a specific amount for apartment
allowance in the Contract does not justify the price of the apartment being unreasonable.
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32. Furthermore, the Respondent submitted that, before engaging the Claimant, it sent him
an offer which stipulated that he would be entitled to a “fully furnished rental apartment
in Petah Tikva” and on the basis of which the Contract was signed, thereby allegedly
demonstrating that he is not entitled to a more expensive apartment outside of Petah
Tikva.
33. The Respondent once again stated that the issue was not raised during the term of the
Contract, and that the Claimant only contested the payment of the last rental charge due
to his departure from Israel prior to the expiration of the lease.
34. The Respondent also wished to raise that it was the Claimant’s responsibility to specify in
writing that he objected to the salary deductions, and his failure to do so signifies his
consent thereto, in addition to the fact that the Claimant did not demonstrate any express
disagreement throughout the Contract.
35. The Respondent also argued that the contestation of the witness statement was
unsubstantiated.
36. Lastly, the Respondent requested that, should the Chamber find that the deductions were
made unlawfully, any amounts shall be paid in NIS and not EUR.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
37. 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 August 2022 and
submitted for decision on 24 November 2022. 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.
38. 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
Bosnian player and an Israeli club.
39. 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 12 August 2022, the July
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
40. The Chamber further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of an arbitrator, appointed by virtue of the Association’s
Arbitration Institute Codex, alleging that the latter is competent to deal with any disputes
deriving from the relevant employment contract, in accordance with art. 7 of the Contract.
41. The Chamber also observed that the Claimant insisted on the competence of FIFA to
adjudicate the present claim, sustaining that the arbitration proceedings outlined under
art. 7 do not comply with the requirement of an independent arbitral tribunal
guaranteeing fair proceedings and respecting the principle of equal representation of
players and clubs.
42. Taking into account all the above, the Chamber emphasised that, in accordance with
art. 22 par. 1 lit. b) of the Regulations, FIFA is, in principle, competent to hear an
employment-related dispute between a club and a player of an international dimension.
Nevertheless, the parties may explicitly opt in writing for such dispute to be decided by
an independent arbitration tribunal that has been established at national level within the
framework of the association and/or a collective bargaining agreement. Any such
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arbitration clause must be included either directly in the contract or in a collective
bargaining agreement applicable on the parties. The independent national arbitration
tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
43. In this respect, the Chamber noted that art. 7 of the Contract did not contain any
jurisdiction clause whatsoever in favour of a National Dispute Resolution Chamber
(NDRC), in accordance with art. 22 par. 1 lit. b).
44. As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the need
to enter the analysis of any further requirement, it established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be rejected
and that the Dispute Resolution Chamber is competent, on the basis of art. 22 par. 1
lit. b) of the Regulations, to consider the present matter as to the substance
b. Burden of proof
45. 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
46. 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
47. 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 lawfulness of
deductions made from the Claimant’s monthly salary, based on the costs of the Claimant’s
accommodation throughout the Contract.
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48. To begin with, the Chamber recalled the Claimant’s argumentation that the Respondent
undertook to pay the Claimant’s accommodation contractually, and that he never
formally agreed to any of the deductions made by the Respondent to the Claimant’s
salary. The Chamber also recalled that the Claimant stressed that the Respondent failed
to find an apartment for the Claimant, and proposed a more expensive one from the
beginning, as well as arguing that the reductions remained uncontested during the
contractual term because he did not want to be seen as a “problem-maker” during the
short duration of the Contract.
49. On the other hand, the Chamber observed that the Respondent provided testimony to
corroborate that the more expensive apartment had been chosen exclusively by the
Claimant, and that there was a mutual agreement to deduce the rental charge from the
Claimant’s salary, given that said apartment was more than double the price of the one
originally proposed by the Respondent. The latter also relied on various correspondence
exchanged between the parties to support its line of argument that, whilst the Contract
stipulated that the Claimant’s accommodation costs would be entirely paid for, a different
agreement had been concluded in practice.
50. The Chamber firstly turned its attention to the witness statement submitted by the
Respondent, from an agent who assisted the Claimant and the Respondent in signing the
Contract, as well as in finding the apartment that the Claimant eventually resided in. The
Chamber wished to point out that, although the Claimant submitted that the witness is
unreliable and referred to his nationality and “good relationship with the Respondent”,
no evidence corroborating any allegation of a conflict of interests or partiality was
submitted. The Chamber, therefore, considered the contents of the witness statement,
which declared the following significant points:
-
The Claimant turned down an apartment offered by the Respondent as his wife
was not interested in living there;
-
The Claimant requested that the agent shall negotiate the payment terms of the
apartment between himself and the Respondent, the result of which was the defacto agreement that the Claimant would have NIS 4,500 deducted from his salary;
-
The Claimant attempted to obtain an exemption for the rental charge for
May 2022, given that he was leaving Israel early; the agent allegedly attempted to
negotiate this with the landlord of the apartment.
51. Moreover, the Chamber noted that the Respondent also submitted the exchange of
correspondence dated 4 February 2022 in which the Claimant requested the Respondent
for NIS 3,000 to be deducted from his salary so that he could pay a deposit for the
apartment to which he was moving. The Chamber deemed that said correspondence
suggested that, from the beginning of the Contract, the Claimant was already looking for
another apartment on his own and bearing the costs for it, with no sign of dissent, despite
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the fact that the Contract clearly stipulated that the Respondent undertakes to pay for
the Claimant’s accommodation.
52. The Chamber also took note of the WhatsApp messages exchanged between the parties
on 21 June 2022, which further substantiated the allegation that the parties had agreed
upon the deductions, as the Claimant requested an exemption exclusively for the rental
charge of May 2022.
53. Lastly, the Chamber also considered it significant that the Claimant only ever contested
the deductions at the end of the Contract with the sporting director, stating that he was
not sure how to proceed and that he would ask another representative of the
Respondent. No further evidence of dissent or contestation was submitted by the
Claimant, nor could it be inferred from the Respondent’s submissions.
54. After carefully analysing the argumentation and evidence submitted by the parties, the
majority of the Chamber deemed that whilst there was no contractual amendment to
reflect this change in the employment dynamic, the Claimant provided insufficient
evidence of dissent with the diversion from the Contract. In particular, it was noted that
the Claimant’s explanation that he did not want to be seen as a problem maker, though
feasible, bore no evidentiary weight, being an entirely subjective criterium.
55. Moreover, the majority of the Chamber considered that the Respondent provided
substantial evidence corroborating the existence of an established and uncontested
practice, with regards to the salary reductions over the course of the Contract.
56. In conclusion, the majority of the Chamber established that, in accordance with art. 13
par. 5 of the Procedural Rules, the Respondent met the burden of proving that the salary
deductions were justified. Therefore, the Chamber decided to reject the Claimant’s
request.
d. Costs
57. 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.
58. 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.
59. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Adi Mehremic, is rejected.
2. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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