Labour Disputes
Texto da decisão
REF. FPSD-13081
Decision of the
Dispute Resolution Chamber
passed on 19 June 2024
regarding an employment-related dispute concerning
the player Imrane Oulad Omar
BY:
Frans DE WEGER (The Netherlands), Chairperson
Khadija TIMERA (Senegal), member
Laurel VAURASI (Fiji), member
CLAIMANT:
Imrane Oulad Omar, The Netherlands
Represented by Boaz Sity
RESPONDENT:
FC Dinamo Tbilisi, Georgia
pg. 2
REF. FPSD-13081
I. Facts of the case
1.
On 24 June 2022, the Dutch player, Imrane Oulad Omar (hereinafter: the Claimant or the
Player), and the Georgian club, FC Dinamo Tbilisi (hereinafter: the Respondent or the Club)
signed an employment contract valid as from 24 June 2022 until 31 December 2023
(hereinafter: the contract).
2.
In accordance with clause 4 of the contract, the Respondent undertook to pay to the
Claimant the following amounts:
“4.1. From June 24, 2022 the Club shall pay the Player monthly salary in amount of 15 000
(Fifteen Thousand) Gel without income tax -NET.
4.2. From January 1, 2023 the Club shall pay the Player monthly salary in amount of 20
000 (Twenty Thousand) Gel without income tax – NET, in case of: the Player from June 24,
2022 – till December 31, 2022 plays 60% or more of the official matches of the first team
– 45 minutes is defined as the play, spent by the player on the field during each match,
and the Club will participate on the group stage of UEFA Conference League 2022/2023 or
the Club wins the title of Erovnuli Liga 2022.
4.3. For the additional stimulation employer is authorized to pay the bonuses to the player;
The bonuses shall be paid in accordance with the Club’s domestic policy.
4.4. The Club shall provide the Player with a monthly Flat fee in amount of 1000 (One
Thousand) GEL, without income tax- NET.
4.5. The Club shall provide the Player with two economy class round-trip airline tickets per
season the direction of Amsterdam.
4.6. Salary shall be paid until 15th of next calendar month.”
3.
On 1 February 2023, the parties concluded a document titled “Agreement (On making
amendment to the Employment Contract signed on June 24, 2022)” (hereinafter: the
amendment) and extended the validity of the contract until 31 December 2024.
4.
Additionally, the amendment modified clause 4.1. of the contract as follows:
“4.1. From February 1, 2023 the Club shall pay the Player monthly salary in amount of 10
500 (Ten Thousand Five Hundred) EUR equivalent in GEL without income tax – NET,
according to the official exchange rate of the National Bank of Georgia existing on the day
of payment.”
pg. 3
REF. FPSD-13081
5.
On 19 September 2023, the parties signed a “Mutual Agreement” (hereinafter: the
termination agreement), by which they agreed to terminate the contract as of 19 September
2023.
6.
In accordance with the termination agreement, the Respondent undertook to pay the
Claimant the following amounts:
“3. The Club will pay the Footballer the salary for the months of July and August 2023 and
the salary as of September 19, 2023. Payments shall be made as follows:
• Salary for July, 2023 – till October 1, 2023;
• Salary for August, 2023 – till October 15, 2023;
• Salary as of September 19, 2023 – till November 1, 2023.”
7.
Furthermore, clause 4, 5 and 8 of the termination agreement contained the following
statements:
“4. The Parties agree that the Club has no financial (except Article 3) and other obligations
towards the Footballer.
5. After signing this Agreement, the Footballer has no obligations towards the Club. (…)
8. We have carefully reviewed this Agreement and accept its terms and conditions.”
8.
On 29 September 2023, the Respondent paid GEL 29,715 to the Claimant, corresponding
to the salary for July 2023.
9.
On 14 November 2023, the Claimant sent the Respondent a notice of default and requested
payment of EUR 17,430 net, setting a 10 days’ time limit to remedy the default. In this
notice, the Claimant acknowledged that the Respondent paid the salary for July 2023, but
argued that the salaries for August 2023 and September 2023 were still overdue.
10. On 21 November 2023, the Respondent replied to the Claimant’s letter, arguing that the
Club was not obliged to pay the mentioned amount in full to the Player, as he had received
advance payments from the Club totalling EUR 14,542. In this respect, the Respondent
stated that the amount to be paid in favour of the player was EUR 2,608, which was going
to be paid by the Club no later than 31 December 2023.
11. On 24 January 2024, after the claim was lodged, the Respondent paid GEL 7,555.64 to the
Player.
pg. 4
REF. FPSD-13081
II. Proceedings before FIFA
12. On 17 December 2023, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed as follows.
a. Position of the Claimant
13. According to the Claimant, the Club paid the salary for July 2023 but did not pay the salaries
for August 2023 and September 2023 as stipulated in the termination agreement, which is
why the outstanding amount stands at EUR 17,149.
14. Additionally, the Claimant argued that the Club’s argument regarding the advance
payments should be disregarded because:
(i)
the latest of the alleged advance payments was made no less than 6 months prior to
the termination agreement;
(ii) the payments were part of the Player’s remuneration during his time with the Club;
(iii) in the termination agreement, the parties did not make any reference to the alleged
advances, even though the termination agreement was drafted by the Club, who chose
to not include any reference or mention of a deduction;
(iv) the alleged advance payments were from 2022, and in 2023 the parties concluded the
amendment, which also had no reference to such payments;
(v) the Club did not produce any document signed by the Player which confirmed that any
of the referenced payments were an advance of his salaries.
15. The Claimant’s requests for relief were the following:
“24. Based on the above, the Player submits that his claim demonstrates the following
points:
1) The Club failed to comply with the terms of the Mutual Termination, paying the Player
only EUR 10,500 net, meaning an amount of NIS 17,149 net remains outstanding.
2) The Player put the Club in default but the Club failed to comply.
3) The Claimant is entitled to an outstanding overdue payable in the amount of EUR
17,149.
4) In accordance with the long-standing practice of the FIFA Football Tribunal, the Claimant
asks to order the Club to pay 5% interest p.a. from the date any payment was supposed to
be made and until the date of effective payment.
pg. 5
REF. FPSD-13081
25. Please note that all sums claimed are in net amounts, not gross, and the Club bears
the responsibility to pay any taxes related to the payments.
26. The Player hereby asks the FIFA Football Tribunal to fully accept the claim.”
b. Position of the Respondent
16. According to the Respondent, until 19 September 2023 the Player was entitled to receive
GEL 349,326.50 and the Club paid GEL 346,068.65, which is why the outstanding amounts
stands at GEL 3,257.85.
17. Furthermore, the Respondent argued that the termination agreement was void due to
fundamental error. The Club stated that, after concluding the termination agreement, it
realised that the debt owed to the Player was less than what it had considered when the
agreement was signed.
18. The Respondent assured that the origin of the fundamental error was, on one hand, the
Player’s incorrect statements to the CEO as to what he was allegedly due, which made the
Club believe that it had previously underpaid the Player, and, on the other hand, the Club’s
very limited operational resources, as it can be considered a “small club” and has over 100
salaried employees who are paid under a unique set of contractual terms, thus making it
difficult to track all payments.
19. The Club also argued that there was an arithmetical error, since the common intention of
the parties was to put an end to the relationship and pay all the monies owed up to the
date of the termination agreement. The Club said that if it had known the real debt, it would
have never entered into the termination agreement.
20. Finally, the Respondent pointed out that enforcing the termination agreement would
constitute an unjust enrichment, as the Claimant would receive a payment in exchange for
a non-existent right.
21. The Respondent’s requests for relief were the following:
“I. The termination agreement of 19 September 2023 is void for fundamental error.
II. In the alternative, the termination agreement of 19 September 2023 shall be rescinded,
to prevent the unjust enrichment of Mr. Imrane Oulad Omar.
III. In any case, Dinamo is ordered to pay Mr. Imrane Oulad Omar the amount of GEL
3,257.85 and no more.
IV. In any case, the cost of proceedings, if any, shall be borne by Mr. Imrane Oulad Omar,
pg. 6
REF. FPSD-13081
V. In any case, Mr. Imrane Oulad Omar shall be ordered to pay FC Dinamo Tbilisi a total
amount of CHF 5,000.00 (five thousand) as a contribution towards the legal expenses
incurred in connection with these proceedings.”
c. Rejoinder of the Claimant
22. In his rejoinder, the Claimant indicated that the Club, in the termination agreement,
undertook to pay the Player 2.5 salaries in full, with no deductions of any kind. In this sense,
the Player insisted that the Club should have addressed any deduction in the termination
agreement. In addition, the Player remarked that he might not have agreed to terminate
the Contract if he had known that the Club intended to make any deduction.
23. The Claimant also highlighted that the contra proferentem principle should apply, since the
Club drafted the termination agreement with the assistance of its lawyer. Furthermore, he
mentioned that the Club cannot fault him for entering into the agreement and that there
was no room for error or miscalculation in the termination agreement.
24. The Claimant acknowledged that, on 24 January 2024, the Club made a payment of EUR
2,608, equal to GEL 7,555, which must be deducted from the claimed amount.
d. Final comments of the Respondent
25. In its final comments, the Respondent indicated that the intention of the termination
agreement was not to pay 2.5 salaries in full, but to pay the salaries for July, August and 19
days of September 2023, as it was the alleged debt that the Club thought they had towards
the Player.
26. The Respondent also said that the payment agreed in the termination agreement was not
a compensation, but an act of good faith and fairness from the Club, to ensure that the
Player was properly paid for the services provided until 19 September 2023.
27. Additionally, the Club argued that the contra proferentem principle does not apply, as this
dispute is not about any ambiguity of the termination agreement.
28. Lastly, the Club added that, apart from an unjust enrichment, the Player’s claim is an abuse
of right, because he is attempting to receive sums which have already been paid.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
29. 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
pg. 7
REF. FPSD-13081
took note that the present matter was presented to FIFA on 17 December 2023 and
submitted for decision on 19 June 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.
30. 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 (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 Dutch player and
a Georgian club.
31. 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 17 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
32. 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
33. 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
34. 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 for overdue
payables regarding a mutual termination agreement.
pg. 8
REF. FPSD-13081
35. The Chamber recalled that, according to the Player, the Club failed to comply with the
termination agreement, in that it did not make the second and third payments established
in such agreement. Notwithstanding this, the Chamber observed that the Claimant
acknowledged that the Club paid EUR 2,608 after lodging the claim, and that he argued that
said amount must be deducted from the claimed amount.
36. On the other hand, the Chamber noted the Respondent’s argument that, considering the
payment made after the claim was lodged, the Club only had a debt of GEL 3,257 towards
the Player and was not obliged to pay any other amount. In this sense, the Chamber
pointed out the Respondent’s contentions that the termination agreement was void for
fundamental error or, in any case, should be rescinded to prevent unjust enrichment.
37. In this context, the Chamber acknowledged that its task was to determine if the Club was
obliged to pay the salaries for August 2023 and 19 days of September 2023, as set forth in
the termination agreement, or if the agreement was null and void and the Club only had a
debt of GEL 3,257.
38. First, regarding the Respondent’s argument that the termination agreement has been
signed under fundamental error, the Chamber remarked that the Club bore the burden of
proof in this respect. Nevertheless, the Chamber noted that the Respondent has provided
no evidence in this regard, having only mentioned two supposed causes of the alleged
fundamental error without proving their occurrence.
39. Notwithstanding the foregoing, for the sake of completeness, the Chamber highlighted
that, according to the longstanding jurisprudence of the Football Tribunal, a contractual
party signing a document of legal significance, as a general rule, does so under its own
responsibility and is liable to bear the legal consequences of such signature. In this regard,
the Chamber observed that it was not possible to consider that the Club entered into the
termination agreement under fundamental error due to the Player’s statement or because
of its limited operational resources, as the Club signed under its own responsibility.
40. The Chamber considered that, in any case, the Club had the possibility and the burden to
verify all the relevant information before concluding any agreement. Furthermore, the
Chamber especially wished to highlight that clause 8 of the termination agreement stated
that the parties had carefully reviewed it.
41. Also, the Chamber pointed out that, in the correspondence from 21 November 2023, the
Club did not raise the argument concerning fundamental error, and only mentioned that it
was not obliged to pay because the Player had received some advance payments.
Therefore, the Chamber considered that this argument was further weakened.
42. Additionally, the Chamber took into account that the Club did not provide any convincing
element to prove that the case at hand dealt with an arithmetical error. The Chamber noted
pg. 9
REF. FPSD-13081
that the contents of the termination agreement indicated that the common intention of
the Parties was to terminate the Contract and that the Club’s obligation was to pay the
salaries of July 2023, August 2023, and 19 days of September 2023.
43. In light of the above, the Chamber considered the evidence presented was insufficient to
conclude that the termination agreement was invalid. As such, and based on the principle
of pacta sunt servanda, the Chamber concluded that said document must be considered
valid and binding for the parties.
44. The aforementioned having been established, the Chamber moved to analyse the unjust
enrichment argument raised by the Respondent. In this sense, the Chamber recalled that
the Respondent mentioned that the Claimant would receive a payment for a non-existent
right. The Chamber also observed that the Respondent provided a detailed calculation of
all the amounts that the Player should have been entitled to according to the contract until
19 September 2023 and stated that the Club only had a debt of GEL 3,527 towards the
Player.
45. Nonetheless, the Chamber pointed out that, by signing the termination agreement, the
parties novated their obligations. Therefore, the Chamber remarked that, as from the date
the Parties entered into such agreement, the Club’s financial obligations were the ones
stipulated in clause 3, regardless of any previous payment made. In this context, the
Chamber considered that it was again the Club who had the burden of proving that such
payments have been made and their correlation to the outstanding debt with the Player.
46. The Chamber observed that the Club failed to prove the payment of the salaries for August
2023 and 19 days of September 2023 after the signature of the termination agreement and
attempted to allocate previous payments for obligations that arose subsequently, although
no reference to any deduction had been included in the agreement.
47. Based on the above, and considering that the termination agreement was valid and binding
for the parties and that the Respondent failed to prove that it satisfied its obligations
therein, the Chamber understood that payment of the salaries for August 2023, and 19
days of September 2023 would not imply unjust enrichment, as the Player did not receive
such payments.
48. Additionally, the Chamber considered that it was incorrect for the Club to argue that the
payments would be in exchange for a non-existent right, as the termination agreement was
the origin of such payments.
49. In this context, the Chamber noted that according to the termination agreement, the Player
should have been entitled to receive the payment of the salaries for August 2023 and 19
days of September 2023. To calculate their amount, the Chamber saw necessary to turn
the attention to the amendment. In this sense, the Chamber observed that the Player
should have received EUR 10,500 for August 2023 and EUR 6,649 for 19 days of September
pg. 10
REF. FPSD-13081
2023. However, according to this amendment, the Chamber identified that the salaries
should be paid in GEL according to the official exchange rate of the National Bank of
Georgia existing on the day of payment.
50. The Chamber then noted that, on 15 October 2023, the due date for the salary
corresponding to August 2023, EUR 10,500 were equivalent to GEL 29,812.65 according to
the exchange rate of the National Bank of Georgia, and that on 1 November 2023, the due
date for the salary corresponding to 19 days of September 2023, EUR 6,649 were equivalent
to GEL 19,200.31. Furthermore, the Chamber remarked that the amount of GEL 7,555.64
must be deducted, to prevent unjust enrichment.
51. As a consequence of all the above, and based on the general principle of pacta sunt
servanda, the Chamber decided to award the Player GEL 41,457.32 plus 5% interest p.a. as
from the day after each due date.
ii. Art. 12bis of the Regulations
52. The Chamber then referred to art. 12bis par. 2 of the Regulations, which stipulates that any
club found to have delayed a due payment for more than 30 days without a prima facie
contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.
53. To this end, the Chamber confirmed that the Player put the Club in default of payment of
the amounts sought and granted the Club 10 days to cure such breach of contract.
However, the Chamber noted that neither the second nor the third instalment of the
termination agreement had been due for more than 30 days when the Player sent the
notice of default. In this regard, the Chamber highlighted that the Player sent the notice of
default exactly 30 days after the second instalment was due, meaning the debt had not
been overdue for more than 30 days.
54. Therefore, the Chamber concluded that the requirements of art. 12bis had not been met
and, consequently, no sanctions based on this article shall apply.
iii. Compliance with monetary decisions
55. 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.
56. 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
pg. 11
REF. FPSD-13081
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.
57. 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.
58. 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.
59. 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
60. 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.
61. 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.
62. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-13081
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Imrane Oulad Omar, is partially accepted.
2.
The Respondent, FC Dinamo Tbilisi, must pay to the Claimant the following amount:
- GEL 41,457.32 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of GEL 22,257.01 net as from 16 October 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of GEL 19,200.31 net as from 2 November 2023 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
pg. 13
REF. FPSD-13081
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
pg. 14