Labour Disputes
Texto da decisão
REF FPSD-5138
Decision of the
Dispute Resolution Chamber
passed on 18 May 2022
regarding an employment-related dispute concerning the player Kerrar J.
Muhammed
BY:
Johan VAN GAALEN, South Africa
CLAIMANT:
Kerrar J. Muhammed, Iraq
Represented by Mohammed Ammar Mohamed
RESPONDENT:
Naft Masjed-Soleyman Athletic & Cultural Institution FC, Iran
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REF FPSD-5138
I.
Facts of the case
1.
On 7 October 2021, the Iraqi player, Mr Kerrar J. Muhammed (hereinafter: the player or the
Claimant), and the Iranian club, Naft Masjed-Soleyman Athletic & Cultural Institution FC
(hereinafter: the club or the Respondent) concluded an employment contract valid as from
the date of signature until “the end of Iranian Premiere League and FA Cup in season
2021/2022” (hereinafter: the employment contract).
2.
Under clause 6 of the employment contract, the club undertook to pay the player the
following amounts:
a.
b.
c.
d.
IRR 15,000,000,000 payable on 6 November 2021;
IRR 5,000,000,000 payable “10 days before the winter transfer window”;
IRR 10,000,000,000 payable “at week 25”; and
IRR 5,000,000,000 payable “in the end of season and contract”.
3.
In accordance with the information available in the Transfer Matching System (TMS) for the
Islamic Republic of Iran Football Federation (IRIFF): (i) the winter transfer window closed on
12 February 2022; and (ii) the official 2021/2022 season is supposed to end on 20 June 2022.
4.
Notwithstanding the above, the IRIFF informed that the player was registered with the club
as from 19 October 2021 until 21 May 2022.
5.
The player remained unemployed following the termination of the alleged employment
contract.
II. Proceedings before FIFA
6.
On 14 February 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. The claim of the player
7.
In his claim, the player pointed out that he was injured and in recovery when the club decided
to unilaterally terminate their employment relationship. In this respect, he argued that the
club “seemed to falsify the truth and provide false information about the player” regarding
absences and a “period of leave”.
8.
Furthermore, he acknowledged having received the total of IRR 14,000,000,000 out of the
IRR 35,000,000,000 due by the club during the term of the employment contract.
9.
The requests for relief of the player were as follows:
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“First: [the club] is obligated to pay the sum of eighty-four thousand US dollars, the rest
of the money of [the player] and also obligating the club to pay ten thousand US dollars
to the player for the treatment expense because the player paid it from his own account
because the club refused to pay him the treatment expense;
Second: Punishment of [the club] by not registering any local or foreign players for a
period of three years
Third: obligating [the club] to pay an amount of three hundred thousand US dollars as
compensation for the holidays and the material and moral damage suffered by [the
player].
Fourth: Obligating [the club] to pay [the player’s] legal agent's commission, which is
thirty thousand US dollars”.
b. Additional comments by the player
10. After being invited to provide further clarification on the termination of the employment
contract, the player wrote as follows: “I also inform you because [the player] began his
contract with the club on the date 7/10/2021 and it expired 18/1/2022 and he is currently
unemployed and suffering from phycological depression due to being deceived by [the club]”.
c. Position of the club
11. On 4 April 2022, after the deadline granted to the club by the FIFA general secretariat and
equally after the closure of the submission phase of the proceeding, the club filed its late
reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 14 February 2022
and submitted for decision on 18 May 2022. Taking into account the wording of art. 34 of
the October 2021 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.
13. Subsequently, the Single Judge 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 (March 2022 edition), the Dispute
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Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Iraqi player and an
Iranian club.
14. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (March 2022 edition), and
considering that the present claim was lodged on 14 February 2022, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. The Single Judge 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 Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
16. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
17. The foregoing having been established, the Single Judge moved to the substance of the
matter, and noted that the case at stake pertains to claim for compensation due to a breach
of contract, lodged by the player against the club.
18. On one hand, the Single Judge was observant of the player’s argumentation according to
which the employment contract was unlawfully and unilaterally terminated by the club on 18
January 2022.
19. On the other hand, the Single Judge observed that the club did only reply to the claim on 4
April 2022, once the submission phase of the present proceedings was already closed, and
after the deadline given to the club by the FIFA general secretariat. As a consequence, the
Single Judge referred to art. 23 of the Procedural Rules and wished to emphasize that parties
to the proceedings are not authorised to supplement or amend their submissions or requests
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for relief or produce new evidence once the submission phase is closed. Likewise, in
accordance with art. 21, par. 1 in combination with art. 11, par. 4 of the Procedural Rules,
the competent FIFA deciding body shall take a decision upon the basis of the documents on
file, since submissions (i.e. a reply) received outside of the time limit shall not be taken into
account.
20. In view of the foregoing, the Single Judge concluded that the club’s reply was inadmissible,
hence that it remained undisputed that the employment contract was prematurely terminated
by the club. Moreover, the Single Judge highlighted that the club could not meet its burden
of proving that the player somehow breached his contractual obligations, let alone that the
termination was an ultima ratio measure and/or took place with just cause in line with the
well-established jurisprudence of the Dispute Resolution Chamber.
21. Based on the above and due to the lack of any valid and convincing evidence capable of
rebutting the player’s argumentation, the Single Judge decided that the employment contract
was de facto terminated by the club on 18 January 2022, without just case.
22. For the sake of completeness and although confident of the exhaustiveness of the foregoing,
the Single Judge wished to add that he felt additionally comforted in his conclusion by noting
that both the club in its late submission and the IRIFF appear to have confirmed inter alia that:
(i) the player was indeed entitled to total of IRR 35,000,000,000 for the duration of the
employment relationship; and (ii) the employment contract was prematurely terminated;
therefore, corroborating with the abovementioned conclusion.
ii. Consequences
23. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the club.
24. The Single Judge recalled that under the employment contract the player would be entitled
to a total remuneration of IRR 35,000,000, as follows:
a.
b.
c.
d.
IRR 15,000,000,000 payable on 6 November 2021;
IRR 5,000,000,000 payable “10 days before the winter transfer window”;
IRR 10,000,000,000 payable “at week 25”; and
IRR 5,000,000,000 payable “in the end of season and contract”.
25. Taking into consideration that – in accordance with TMS – the winter transfer window in Iran
closed on 12 February 2022, the Single Judge concluded that only the first instalment of the
employment contract had fallen due at the time of the termination (i.e. 18 January 2022). In
addition, the player acknowledged receipt of IRR 14,000,000,000.
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26. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the player should be entitled to IRR 1,000,000,000 as
outstanding remuneration.
27. The Single Judge also stressed that as per the solid jurisprudence of the Dispute Resolution
Chamber, the player would be in principle entitled to interest at the rate of 5% p.a. on the
outstanding amounts as from its due date until the date of effective payment. Nevertheless,
considering the principle of non ultra petita according to which the deciding body is bound
by the limits of a party’s request for relief, the Single Judge determined that no interest should
be awarded to the player, as these were not requested by the latter.
28. Having stated the above, the Single Judge 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 Single
Judge 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.
29. In application of the relevant provision, the Single Judge held that he 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
30. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
31. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the employment
contract from the date of its unilateral termination until its end date. Consequently, the Single
Judge concluded that the amount of IRR 20,000,000,000 (i.e. the three last instalments of
the employment contract) serves as the basis for the determination of the amount of
compensation for breach of contract.
32. In continuation, the Single Judge 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
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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.
33. Indeed, the player did not find new employment, and therefore no mitigation shall apply to
the matter at hand.
34. Subsequently, the Single Judge 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 Single Judge confirmed that the employment
contract was terminated by the club and did not take place due to said reason, and therefore
decided that the player shall not receive additional compensation.
35. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of IRR
20,000,000,000 to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
36. Lastly, the Single Judge outlined once again that the player would be entitled in principle to
interest on the compensation as from the date of the claim until the date of effective
payment, however that such concept could not be granted due to the principle of non ultra
petita.
iii. Compliance with monetary decisions
37. Finally, taking into account the applicable Regulations, the Single Judge 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.
38. In this regard, the Single Judge 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.
39. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
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consecutive registration periods shall become immediately effective on the club in accordance
with art. 24 par. 2, 4, and 7 of the Regulations.
40. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
41. The Single Judge 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
42. The Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
43. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
44. Lastly, the Single Judge rejected 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, Kerrar J. Muhammed, is partially accepted.
2.
The Respondent, Naft Masjed-Soleyman Athletic & Cultural Institution FC, has to pay to the
Claimant, the following amount(s):
- IRR 1,000,000,000 as outstanding remuneration; and
- IRR 20,000,000,000 as compensation for breach of contract.
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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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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