Labour Disputes
Texto da decisão
REF. FPSD-9577
Decision of the
Dispute Resolution Chamber
passed on 26 April 2023
regarding an employment-related dispute concerning
the player Hamza Salhi
BY:
Dana Al-Noaimi (Qatar), Single Judge of the DRC
CLAIMANT:
Hamza Salhi, Tunisia
Represented by Slim Boulasnem
RESPONDENT:
Asarya, Libya
pg. 2
REF. FPSD-9577
I. Facts of the case
1.
On 2 September 2022, the Tunisian player, Hamza Salhi (hereinafter: the player or the
Claimant) and the Libyan club, Asarya (hereinafter: the club or the Respondent) concluded
an employment contract (hereinafter: the contract), valid as from the date of its signature
until 15 July 2024 (as confirmed with the information displayed in the Transfer Matching
System).
2.
According to the contract, the club undertook to pay the player – inter alia – an annual
remuneration of USD 20,000 (USD 10,000 at the beginning of the relevant season and the
remainder, i.e. USD 10,000, in monthly salaries of USD 1,000 each).
3.
Under clause 5.7 of the contract, the club undertook to provide the player with a health
insurance during the term of the contract and 3 months thereafter.
4.
On 15 December 2022 – during a training session – the player suffered an injury in his knee
and, on the following day, the medical report confirmed that he suffered an injury to the
ligaments in his right knee.
5.
Subsequently, on 20 December 2022, the player travelled back to Tunisia in order to
undergo surgery.
6.
By means of his notice dated 25 January 2023, the player, inter alia: put the club in default
of payment of 4 outstanding salaries (September – December 2022), urged the club to
resolve his administrative situation, confirm that the player would receive medical
treatment to recover from the injury suffered, provide the player with medical assistance,
reimburse the player the medical expenses already incurred; all of the aforementioned
within the following 10 days as to the outstanding salaries and of 5 days as to the rest of
the requests.
7.
By means of his notice dated 13 February 2023, the player unilaterally terminated the
contract.
8.
The player remained unemployed following the termination of the contract.
pg. 3
REF. FPSD-9577
II. Proceedings before FIFA
a. Position of the Claimant
9.
On 12 March 2023, the player lodged a claim against the club in front of FIFA, requesting
the club be ordered to pay outstanding remuneration and compensation for breach of
contract in the total amount of USD 35,000 and TND 10,000 (approx.: USD 3,300), plus 5%
interest p.a. as from the respective due dates; amounts broken down by the Claimant as
follows:
Outstanding remuneration: USD 5,000. TND 10,000 and LYD 400
USD 1,000 as salary of September 2022;
USD 1,000 as salary of October 2022;
USD 1,000 as salary of November 2022;
USD 1,000 as salary of December 2022;
USD 1,000 as salary of January 2023;
TND 10,000 as reimbursement of medical expenses (note: document on file)*;
LYD 400 as reimbursement of flight tickets (Libya – Tunisia); (note: document on file).
Compensation for breach of contract: USD 45,000
USD 25,000 as residual value of the contract, i.e. the salaries due between February and
June 2023 (5 salaries of USD 1,000 each) and the residual value of the contract for the
2023/2024 season (USD 20,000);
USD 10,000 as compensation for breach of contract in view of the specificity of the sport;
USD 10,000 as moral damages;
Legal costs:
USD 5,000 as legal costs.
10. In his claim, the player explained that, despite having validly entered into the contract, the
club failed to respect its contractual obligations towards him. In particular, the player
argued that the club – at the very beginning of the contractual relationship – already failed
to pay the full amount of the sign-on fee and to provide the player with assistance
concerning administrative undertakings related to his employment and residence.
11. Moreover, the player explained that – upon the injury he suffered in his knee – the club did
not count with his professional services, failed to provide him with any medical assistance
and refused to cover the medical expenses incurred by the player.
pg. 4
REF. FPSD-9577
12. As to the premature termination of the contract, the player held that, following the lack of
reply of the club to his default notice of 25 January 2023, and since the club failed to cure
the breaches committed by the latter, as explained in the referred notice, the club clearly
showed a lack of interest in the player’s services, which led him to unilaterally terminate
the contract with just cause.
13. As for the medical expenses incurred by the player*, the latter provided the following
supporting documentation:
-
An invoice issued on 11 January 2023 by a pharmacy, displaying an expense of TD
159;
An invoice issued on 12 January 2023 by “Tunisial Clinic Alyssa SA” displaying an
expense of TD 1,450;
A bill issued by the Dr. Makni Hateda on an unspecified date displaying an expense
of 350,000 without indication of the currency;
A bill issued by the Dr. Mohsen Trabelsi on an unspecified date displaying an expense
of 800 TD;
An invoice issued by a “Kinésithérapeute” on 19 January 2023 displaying an expense
of TD 3,000;
An invoice issued on 22 January 2023 concerning pharmacy expenses in the amount
of TD 60.
b. Position of the Respondent
14. Despite having been invited to reply to the claim, the Respondent failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Chamber or DRC) analysed whether she was competent to deal with the case at hand.
In this respect, she took note that the present matter was presented to FIFA on 12 March
2023 and submitted for decision on 26 April 2023. 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.
16. 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 lit. b) of the
Regulations on the Status and Transfer of Players (March 2022 edition), the Dispute
pg. 5
REF. FPSD-9577
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from
Tunisia and a club from Libya.
17. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she 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 March 2023, the October 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
18. 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 she 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
19. Its 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, she 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
20. The foregoing having been established, the Single Judge moved to the substance of the
matter and deemed it appropriate to formulate the following questions in connection with
the substance of the matter at hand:
A.) Did the player terminate the contract with just cause on 13 February 2023?
21. In this respect, started the Single Judge, even though the player – on his letter of 25 January
2023 – only granted a 10 days’ deadline to the club to cure its breach, several circumstances
need to be considered: 1.) the club was in default of payment of 4 salaries (September –
December 2022); 2.) the club failed to provide assistance to the player as to the
administrative undertakings in connection with the employment of the player; 3.) the club
failed to reply to the default notice of the player: 4.) the club failed to provide the player
pg. 6
REF. FPSD-9577
with medical assistance despite the content of clause 5.7 of the contract; 4.) the player – de
facto – granted the club 18 days before unilaterally terminating the contract; 5.) the club
failed to reply to the claim.
22. In view of all of the above, the Single Judge decided that the player did terminate the
contract with just cause on 13 February 2023, especially considering the particular situation
the player was facing due to the injury he suffered in December 2022 and the club’s lack of
assistance. However, the Single Judge wished to note that the termination of the contract
with just cause is based on art. 14 of the Regulations and not on art. 14bis thereof, as the
requirements of the latter were not met.
23. Therefore, the Single Judge concluded that the Claimant shall be awarded the outstanding
remuneration due to him by the date of termination of the contract, as well as to a
compensation for breach of contract.
B.) Is the player entitled to be reimbursed the amount of TD 10,000 as medical expenses?
24. In this regard, the Single Judge underscored that, although clause 5.7 of the contract states
that the club shall provide the player with a health insurance during the term of the
contract and 3 months thereafter, the amount requested by the player needs to be
supported with the necessary documentary evidence cf. art. 13.5 of the Procedural Rules.
25. The above being said, the Single Judge observed that not all the invoices / bills provided by
the Claimant meet the minimum standards for them to be considered. In this respect, the
Single Judge clarified that an invoice shall contain the following minimum information: date
of issuance, entity issuing the invoice, treatment received / consideration and price.
26. In this context, the Single Judge determined that the bills that were issued on a nonspecified date and / or without a currency cannot be considered for reimbursement
purposes, whereas the rest can and should be considered as they meet the
abovementioned requirements.
27. Hence, the Single Judge decided that the Claimant can only be reimbursed the amount of
TD 4,669.
C.) Is the player entitled to be awarded any compensation in view of the specificity of the
sport? And to be awarded moral damages? And to be awarded legal costs? And to be
reimbursed the flight ticket’s expense?
28. As for the first of the questions, the Single Judge explained that the concept of specificity
of sport is contemplated under art. 17 para. 1 of the Regulations, whose parameters will
be applied to calculate the compensation due to the Claimant, in the absence of a valid
compensation clause included in the contract.
pg. 7
REF. FPSD-9577
29. The above being said, the Single Judge declared that any further compensation requested
by the Claimant invoking the said principle shall be rejected, insofar as no contractual
clause provides for any such entitlement.
30. In connection with the moral damages requested, the Single Judge decided that such
petitum needs to be rejected as there is no contractual clause foreseeing the obligation to
pay any such damages.
31. Moreover, the Single Judge determined that no legal costs shall be awarded in accordance
with art. 25 para. 8 of the Procedural Rules.
32. Lastly, concerning the flight ticket’s expense (LYD 400), insofar as there is no contractual
provision contemplating the player’s right to be provided with flight tickets, the Single Judge
decided to reject the said claim of the Claimant.
ii. Consequences
33. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
34. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to USD 5,000
and TD 4,669
35. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge 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 5,000 (salaries due between September 2022 and January 2023 in
the amount of USD 1,000 each) and TD 4,669 (as reimbursement of medical expenses).
36. 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 amounts as from the respective due dates in connection with
the outstanding salaries and as from the date of termination in connection with the amount
awarded as reimbursement of medical expenses until the date of effective payment.
37. 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
pg. 8
REF. FPSD-9577
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
38. In application of the relevant provision, the Single Judge held that she 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.
39. 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.
40. 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 contract
from the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of USD 25,000 (i.e. the residual value of the contract) serves as
the basis for the determination of the amount of compensation for breach of contract.
41. 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 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.
42. In this respect, the Single Judge took note of the fact that the Claimant did not find a new
contract following the termination of the contract at stake and, therefore, could not
mitigate his damages.
43. 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 USD 25,000 to the player (i.e. the residual value of the contract), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
44. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the Single Judge decided to award the player interest on said
compensation at the rate of 5% p.a. as of 13 February 2023, i.e. as from the date of
termination of the contract, until the date of effective payment.
pg. 9
REF. FPSD-9577
iii. Compliance with monetary decisions
45. 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.
46. 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.
47. Therefore, bearing in mind the above, the Single Judge 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.
48. 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.
49. 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
50. 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.
51. 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.
52. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 10
REF. FPSD-9577
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Hamza Salhi, is partially accepted.
2.
The Respondent, Asarya, must pay to the Claimant the following amount(s):
- USD 5,000 and TD 4,669 as outstanding remuneration, plus 5% interest p.a. as follows:
-
On the amount of USD 1,000, as from 1 October 2022 until the date of effective payment;
-
On the amount of USD 1,000, as from 1 November 2022 until the date of effective
payment;
-
On the amount of USD 1,000, as from 1 December 2022 until the date of effective
payment;
-
On the amount of USD 1,000, as from 1 January 2023 until the date of effective payment;
-
On the amount of USD 1,000, as from 1 February 2023 until the date of effective
payment;
-
On the amount of TD 4,669, as from 13 February 2023 until the date of effective
payment.
- USD 25,000 as compensation for breach of contract, plus 5% interest p.a. as from 13
February 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.
pg. 11
REF. FPSD-9577
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
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. 12