Labour Disputes
Texto da decisão
REF. FPSD-13663
Decision of the
Dispute Resolution Chamber
passed on 7 May 2024
regarding an employment-related dispute concerning the player
Abderrahmane Ben Mohamed Rebai
BY:
Clifford J. HENDEL (USA/France), Deputy Chairperson
Angela COLLINS (Australia), member
Laurel VAURASI (Fiji), member
CLAIMANT:
El Tallaeaa Regdaleen, Libya
Represented by Talel Ben Hadj
RESPONDENT:
Abderrahmane Ben Mohamed Rebai, Tunisia
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REF. FPSD-13663
I. Facts of the case
1.
On 21 November 2023, the Libyan club El Tallaeaa Regdaleen (hereinafter, the Club) and the Tunisian
player Abderrahmane Ben Mohamed Rebai (hereinafter, the Player) concluded “Professional
Footballer Employment Contract” (hereinafter, the Contract), valid as from 21 November 2023 until
the end of the sports season 2023/2024.
2.
According to the information contained in the Transfer Matching System (TMS), the competition
period in Libya runs as from 1 October 2023 until 1 July 2024.
3.
In accordance with Clause 1 of the Contract, the Club and the Player (hereinafter, jointly referred to
as the Parties) agreed upon the following:
“The second party shall work for the first party as a football player for the first team, under a
seasonal contract with a total amount of 55,000 Libyan Dinars. An initial payment of 29,000
Libyan Dinars shall be made upon signing the contract, and the remaining amount shall be
paid as monthly salaries of 3,700 Libyan Dinars”.
4.
The Club alleges that on 23 December 2023 it sent a default notice to the Player via Facebook stating
the following:
“On Monday, 12/11/2023, and based on the attendance and absence record, it has been
confirmed that you have not attended training sessions for a consecutive week and have
subsequently been absent from training as of the writing of this message. Please be informed
that you are bound by a professional player contract effective from 11/21/2023 as per the first
article of the contract, you have received your full entitlements.
Therefore, we hope that you will come to the club’s headquarters to fulfil the duties assigned
to you as per the contract between both parties within 72 hours from the date of this message”.
II. Proceedings before FIFA
5.
On 9 February 2024, the Club filed the claim at hand before FIFA.
6.
On 22 February 2024, the FIFA General Secretariat sent a communication to the Player via e-mail
informing him about the claim lodged by the Club, and requesting him to confirm his e-mail address
for the creation of the relevant ID in the FIFA Legal Portal.
7.
On 23 February 2024, the Player replied via e-mail.
8.
On 29 February 2023, the FIFA General Secretariat send a new communication to the Player
informing him that proceedings before the FIFA Football Tribunal shall be conducted via the FIFA
Legal Portal. The Player was granted a 20-days deadline to provide his position to the claim.
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REF. FPSD-13663
9.
A brief summary of the position of the Parties is detailed in continuation.
a. Position of the Claimant
10. According to the Claimant, it was “surprised on December 11, 2023 that the player is not present in the
Training session” and that on the same date it “contacted the Player via phone and ask him why he does
not attend the Training, the player declares that he is in Zuwara (a city 11 km away from Regdalin) and
that he will come back at the evening”.
11. The Club alleged that “the player never come back to the team and never attend the Training after
December 11, 2023”.
12. The Club asserted that it tried to contact the Player on 23 December 2023 via Facebook.
13. The Club further alleged that it contacted the Player via phone and allegedly he informed that he
was currently in Tunisia and that he would never come back to Libya.
14. According to the Club, “Players leaving without authorisation or failing to return after authorised leave,
the non-attendance of the training sessions for more than 8 weeks is a case of a player leaving without
authorisation and could be considered a violation of the employment Contract from the player or
furthermore a breach of contract from the player without just cause during competition”.
15. The requests for relief of the Claimant, as amended, were the following:
We would be grateful if you would render a decision that the Player leaves the Team without
authorisation, violated the employment contract and that could maybe considered as a
termination of the contract taken unilaterally by the player against the Club and to proclaim
that Mr. Abderrahmane Ben Mohamed Rebai must pay Club Talea Athletic Cultural social Club
the following amounts according to the provisions of article 17 RSTP (CONSEQUENCES OF
TERMINATING A CONTRACT WITHOUT JUST CAUSE).
The initial payment of 29,000 Libyan Dinars (6,016 USD) and the remainder of the contract
which expires at the end of May 31, 2024, according to is value (3,700 Libyan Dinar x 7.02
Months = 26,000 Libyan Dinars (5,394 USD).
- 3.000 USD as compensation for damages suffered by the Team.
- 1.000 USD as legal cost paid to Legal Assistance.
- 5% interest p.a. of the Global Amount till the Date of the Payment. Furthermore, the Club
will be grateful if you take a Sanctional Sporting Decision against the player according to
Article 17 RSTP.
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b. Position of the Respondent
16. The Player failed to provide his position to the claim via the FIFA Legal Portal within the abovementioned deadline.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Dispute Resolution Chamber (hereinafter, also referred to as the DRC or the Chamber)
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 9 February 2024 and submitted for decision on 15 May
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.
18. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (February 2024), it is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international dimension
between a Libyan club and a Tunisian player.
19. 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 9 February 2024, 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
20. 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 TMS.
c.
Admissibility
21. The Chamber recalled that, in accordance with art. 10 par. 1 of the Procedural Rules, “All
communications shall be undertaken via the Legal Portal operated by FIFA (Legal Portal) or the Transfer
Matching System (TMS)”. The Chamber then referred to art. 10 par. 3 of the Procedural Rules,
according to which “Parties must review TMS and the Legal Portal at least once per day for any
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communications from FIFA. Parties are responsible for any procedural disadvantages that may arise due
to a failure to properly undertake such review. The contact details indicated in TMS are binding on the
party that provided them”.
22. In line with the foregoing, the Chamber recalled that art. 21 par. 1 of the Procedural Rules provides
that “After determining that the claim is complete, and (where relevant) if the procedure is to continue
following the conclusion of any preliminary procedural matters, the FIFA general secretariat will request
that the respondent(s) submit their response to the claim via the Legal Portal within the time limit granted.
If the respondent(s) fail(s) to submit a response to the claim within the time limit, a decision will be made
based on the file”.
23. On account of the foregoing, the Chamber concluded that the submissions filed by the Player did
not comply with the requisites enshrined in the Procedural Rules and, therefore, that the Player filed
to correctly and timely present his response to the claim of the Club in spite of having been invited
to do so.
24. Accordingly, the Chamber stressed that the Player renounced his right to defence, and that
consequently the present dispute shall be decided based on file.
d. Merits of the dispute
25. 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 abovementioned 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
26. 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 abovementioned 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.
27. Having established the above, the Chamber went to analyse the allegation of the Club by way of
which it considered that “(…) the non-attendance of the training session for more than 8 weeks is a case
of a player leaving without authorisation and could be considered of a violation of the employment
Contract from the player or furthermore a breach of contract from the player without just cause during
competition”.
28. In this respect, the Chamber referred to art. 13 par. 5 of the Procedural Rules, according to which a
party that asserts a fact has the burden of proving it, and went on to analyse the documentation
provided by the Club in support of its allegations.
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29. On account of the above, the Chamber noted that the Club alleged that on 11 December 2023 (i.e.,
first alleged absence) it called the Player, and the latter informed that he was in another city and
would that he would come back in the evening. The Club also alleged that the Player never came
back to the team and never attended the training sessions after 11 December 2023.
30. The Chamber further noted that the Club also claimed that on 23 December 2023, it allegedly sent
a default notice to the Player via Facebook, granting a deadline of 72 hours to fulfil his obligations.
The Club lastly asserted that the Player called the Club and informed its President that he was
currently in Tunisia and that he would never come back to Libya.
31. Lastly, the Chamber noted that there was no evidence on file regarding any communication from
the Club to the Player, nor any other element, by way of which it could be established that the former
unilaterally terminated the Contract.
32. In view of the foregoing, the Chamber concluded that, in casu, it was the Club who effectively
terminated the Contract by lodging the present claim and, consequently, the issue at stake is
whether the Club terminated the Contract with or without just cause.
33. With the above allegations in mind, the Chamber referred to art. 14 of the Regulations, which
provides that “a contract may be terminated by either parry without consequences of any kind (either
payment of compensation or imposition of sporting sanctions) where there is just cause”. In this respect,
the definition of just cause and whether just cause exists shall be established in accordance with the
merits of each particular case.
34. In this scenario, the Chamber then recalled it is a longstanding and well-established jurisprudence
that only a breach or misconduct which is of a certain severity justifies the termination of a contract.
In other words, only when there are objective criteria, which do not reasonably permit to expect a
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 into in order for an
employer to ensure 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 measure.
35. With the above in mind and after having carefully analysed the Club’s submissions, the Chamber
noted that the only evidence on file that allegedly would justify the Club’s just cause is a default
notice which, according to the Club, was sent to the Player on 23 December 2023 via Facebook.
36. However, from the above evidence the Chamber concluded that it could not determine whether this
communication was effectively sent nor received by the Player. In this very same line, the other
allegations regarding several communications between the Parties were not demonstrated either.
37. The Chamber also wished to emphasise that the Club did not warn the Player about the
consequences that his absences could or would entail, but rather if just decided to lodge the present
claim almost a month after the first alleged absence.
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38. For the sake of completeness, the Chamber stressed that the longstanding and well-established
jurisprudence of the Football Tribunal requires the existence of previous steps (or other lenient
measures) by the employer aimed at ensuring that the employee fulfils his obligations or, in other
words, that the latter is given the chance to comply with his contractual duties (i.e., the termination
of a contract is an ultima ratio measure).
39. In accordance with the foregoing, the Chamber concluded that it was for the Club (who was claiming
compensation for breach of contract) to corroborate the alleged facts (art. 13 par. 5 of the
Procedural Rules). By failure to do so, the Chamber considered that the Club could not prove by any
means that it had just cause to terminate the Contract and, consequently, to establish the
entitlement to any compensation.
e. Costs
40. 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.
41. Furthermore, 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.
42. Lastly, the Chamber 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, El Tallaeaa Regdaleen, 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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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