Labour Disputes
Texto da decisão
REF. FPSD-13692
Decision of the
Dispute Resolution Chamber
passed on 22 April 2024
regarding an employment-related dispute concerning
the player Mardek Mrdkian
BY:
Lívia SILVA KÄGI (Brazil), Deputy Chairperson
Michele COLUCCI (Italy), member
Andre DOS SANTOS MEGALE (Brazil), member
CLAIMANT:
Mardek Mrdkian, Syria
Represented by Horizon (Legal Consultation)
RESPONDENT:
Al Hamriya, United Arab Emirates
pg. 2
REF. FPSD-13692
I. Facts of the case
1.
On 25 June 2023, the Syrian player Mardek Mrdkian (hereinafter the Claimant or the Player)
and the Emirati club Al Hamriya (hereinafter the Respondent or the Club) concluded
employment agreement (hereinafter the Employment Agreement), valid as from 15 July 2023
until 15 May 2024.
2.
In accordance with Clause 3 of the Employment Agreement, the Claimant and the
Respondent (jointly referred to as the Parties) agreed upon the following financial benefits:
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USD 9,000 per month, starting from 15 July 2023 until 15 May 2024;
AED 40,000 (Dirhams) as housing allowance;
AED 2,000 as ticket allowance;
AED 1,000 “in the event of a player making an assist or scoring a goal in official matches”
and “the team wins”;
car “if the player obtains Emirati licence” (unspecified amount);
other unspecified bonuses “for winning of official games as per club regulations”
“according to club’s bonus list”.
3.
The Player asserted that he “has played approximately 10 matches with the Respondent and
scored in 6 matches of which the Respondent has won such matches.”
4.
By a letter of 24 January 2024, the Respondent unilaterally terminated the Employment
Agreement:
“We regret to inform you that, after careful consideration and evaluation, the Board of Directors
has made the difficult decision to terminate your contract with you effective on 24/01/2024.
This decision is not taken lightly, and it is based on a thorough assessment of various factors.
We appreciate the dedication and efforts you have demonstrated during your tenure with us,
but unfortunately, we believe this decision is in the best interest of the club moving forward.
Details regarding the termination process, including any final settlements and financial
clearance please contact the finance department.
And for the car please handover it to the first team secretary by maximum 27/01/2024 otherwise
a 500 dirham will be charge on you per day. We encourage you to reach out to them for any
clarification or assistance you may require during this transition.”
5.
The Claimant signed a new contract with the Syrian club, Hettin, valid as from 1 February
2024 until 30 June 2024 with a total fixed remuneration of SYP (Syria Pounds) 100,000,000,
payable in five instalments of SYR 20,000,000.
6.
During the overlapping period (i.e. until 15 May 2024), the Player was entitled to
SYR 70,000,000 (approx. USD 5,384).
pg. 3
REF. FPSD-13692
II. Proceedings before FIFA
7.
On 14 February 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.
The requests for relief of the Claimant were the following:
“1- The payment of USD 75.720 (Only Seventy-Five Thousand and Seven Hundred Twenty
U.S. Dollars).
2- All official and legal fees and expenses that Claimant incurred in this dispute, if any.
3- Legal interest on all amounts due since their respective due dates.” (emphasis added)
9.
In his claim, the Claimant provided for the following break-down:
b. Position of the Respondent
10. Despite being invited to do so, the Respondent failed to reply to the claim.
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REF. FPSD-13692
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 14 February 2024 and
submitted for decision on 22 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.
12. 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 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 Syrian player and
an Emirati club.
13. 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 15 February 2023, the February 2024
edition of said regulations (hereinafter the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
14. 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
15. 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.
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REF. FPSD-13692
i. Main legal discussion and considerations
16. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club concerning a
termination of the employment relationship by the latter in January 2024.
17. At this point, the DRC acknowledged that its task was to assess if the Respondent had just
cause to terminate the employment agreement.
18. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a
contract without prior warning. In other words, only when there are objective criteria which
do not reasonably permit to expect the continuation of the employment relationship
between the Parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order for an employer to assure the employee’s
fulfilment of his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only be an
ultima ratio.
19. Furthermore, the Chamber recalled that the Respondent terminated the contract without
providing for actual reasons other than that it was a decision of the board based on
“assessment of various factors”.
20. Considering that the Respondent did not provide for any reasons as to why it terminated
the contract and that it failed to reply to the claim, the Chamber concluded, in line with the
principle of contractual stability, that the Respondent breached the contract without just
cause (art. 14 of the Regulations).
ii. Consequences
21. 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.
22. 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 one monthly
salary under the contract, amounting to USD 9,000.
23. Concerning the requested bonuses and car allowance, the Chamber noted that the
Claimant failed to provide any evidence thereto, and, consequently, the DRC decided to
reject those claims in line with art. 13 para. 5 of the Procedural Rules.
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REF. FPSD-13692
24. 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. USD 9,000.
25. 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 amount as from 16 January 2024 until the date of effective
payment.
26. 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
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.
27. 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.
28. 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.
29. 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 USD 36,000 and AED 2,000 serve as the basis for the
determination of the amount of compensation for breach of contract.
30. 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
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REF. FPSD-13692
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.
31. Indeed, the Player found employment with the Syrian club, Hettin. In accordance with the
pertinent employment contract, the Player was entitled to SYR 70,000,000
(approx. USD 5,384) during the overlapping period (i.e. until 15 May 2024). Therefore, the
Chamber concluded that the Player mitigated his damages in the total amount of
USD 5,384.
32. 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 USD 30,616 and AED 2,000 to the Player (i.e. USD 36,000 minus USD 5,384 plus
AED 2,000), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
33. 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 25 January 2024 until the date of effective
payment.
iii. Compliance with monetary decisions
34. 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.
35. 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.
36. 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.
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REF. FPSD-13692
37. 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.
38. 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.
d. Costs
39. 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.
40. 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.
41. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the Parties.
pg. 9
REF. FPSD-13692
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mardek Mrdkian, is partially accepted.
2.
The Respondent, Al Hamriya, must pay to the Claimant the following amount(s):
- USD 9,000 as outstanding remuneration plus 5% interest p.a. as from 16 January 2024
until the date of effective payment;
- USD 30,616 and AED 2,000 as compensation for breach of contract without just cause
plus 5% interest p.a. as from 25 January 2024 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 art. 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
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REF. FPSD-13692
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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