Labour Disputes
Texto da decisão
REF. FPSD-12273
Decision of the
Dispute Resolution Chamber
passed on 10 January 2024
regarding an employment-related dispute concerning
the player Chamseddine Samti,
BY:
Alejandro ATILIO TARABORELLI (Argentina)
CLAIMANT:
Chamseddine Samti, Tunisia
RESPONDENT:
Al Sadd Club, Saudi Arabia
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REF. FPSD-12273
I. Facts of the case
1. The player Chamseddine Samti and Al Sadd Club concluded an employment contract
valid as from 30 July 2023 until 30 May 2024.
2. According to art. 5.1 of the contract, the player was entitled to USD 3,500, to be paid
on the last day of each months.
3. In addition, the player was entitled to the following amounts:
- USD 10,000 on 27 August 2023;
- USD 10,000 as monthly fixed payment(s), due on 30 February 2024.
4. Following art. 5-6 of the contract, the player was entitled to 28 holidays leave every
12 months.
5. On 20 September 2023, the player sent a default notice indicating that he did not
receive the bonus due on 27 August 2023, as well as his salaries of July and August
2023. The player also noted that the club failed to provide him with a car and also
prevented him from training. The player granted 15 days to remedy the default.
6. On 7 October 2023, the player sent a termination notice and referred to his previous
default notice.
7. The player informed FIFA that he remained unemployed.
II. Proceedings before FIFA
8. On 17 October 2023, the player lodged a claim before the FIFA Football Tribunal for
outstanding remuneration and breach of contract without just cause, and requested
the payment of the following amounts, plus 5% interest p.a. as from the due dates:
Item
Amount
Unpaid Salaries (July to October
USD 14,000 (USD 3,500*4)
2023)
Unpaid Sign-on bonus
USD 10,000
Annual Leave Bonus
USD 5,500
Compensation
USD 40,000
9. The Respondent failed to provide its reply.
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REF. FPSD-12273
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Judge) 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 17 October 2023
and submitted for decision on 10 January 2024. Taking into account the wording of art. 34
of the May 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.
2.
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, 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 Tunisian player and a Saudi club.
3.
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, and considering the date
when the present claim was lodged on, 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
4.
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 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
5.
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
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REF. FPSD-12273
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
6.
The foregoing having been established, the Judge moved to the substance of the matter,
and took note of the fact that the present case concerns a breach of contract without just
cause for outstanding remuneration. The Judge noted that the Respondent, Al Sadd Club,
failed to provide its position to the claim. in spite of having been invited to do so. By not
presenting its position to the claim, the DRC Judge was of the opinion that the Respondent
renounced its right of defense and, thus, accepted the allegations of the Claimant.
7.
The Judge observed that the player terminated the contract on 7 October 2023 after having
put the club in default.
8.
On this note, the Judge recalled the contents of art. 14 bis of the Regulations, which
stipulate the following:
“1. In the case of a club unlawfully failing to pay a player at least two monthly salaries on their
due dates, the player will be deemed to have a just cause to terminate his contract, provided
that he has put the debtor club in default in writing and has granted a deadline of at least 15
days for the debtor club to fully comply with its financial obligation(s)”
9.
The Judge noted that at that date, the salaries of August and September 2023 were due,
i.e. 2 months. In addition, a sign-on bonus of USD 10,000 was due on 27 August 2023.
10. Thus, as of the termination date, salaries for the months of August and September 2023,
totalling two months, were outstanding. Additionally, a sign-on bonus of USD 10,000, due
on 27 August 2023, remained unpaid. In this respect, the Judge clarified that, contrary to
the player's claim, no salary was actually due for the month of July 2023, as the contract
officially commenced on 30 July 2023.
11. As a result, the Judge established that the player terminated the contract with just cause,
since an amount equivalent to more than two monthly salaries was outstanding, in line of
art. 14bis of the Regulations.
ii. Consequences
12. Having stated the above, the Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
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REF. FPSD-12273
13. The Judge observed that the outstanding remuneration at the time of termination, coupled
with the specific requests for relief of the player, are equivalent to two monthly salaries, as
well as a sign-on bonus of USD 10,000.
14. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the 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 17,000
(i.e. USD 3,500*2 + USD 10,000).
15. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Judge 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 due dates until the date of effective
payment.
16. Having stated the above, the 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 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.
17. In application of the relevant provision, the Judge 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 Judge established
that no such compensation clause was included in the employment contract at the basis
of the matter at stake.
18. As a consequence, the members of the 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 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.
19. Bearing in mind the foregoing as well as the claim of the player, the 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.
20. The Judge noted that the residual value of the contract, from October 2023 until May 2024,
corresponds to USD 3,500*8 = + USD 10,000 = USD 38,000.
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REF. FPSD-12273
21. Consequently, the Judge concluded that the amount of USD 38,000 serves as the basis for
the determination of the amount of compensation for breach of contract.
22. In continuation, the 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.
23. In this respect, the Judge noted that the player remained unemployed.
24. Subsequently, the 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 Judge confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall in principle receive additional compensation.
25. In this respect, the Judge considered that, in principle, the player would have been entitled
to additional compensation. However, given the provision of art. 17 par. 1 ii, the Judge
noted that only the residual value of the contract can be granted, insofar the overall
compensation may never exceed the rest value of the prematurely terminated contract.
26. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Judge decided that the club must pay the amount of
USD 38,000 to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
27. Lastly, taking into consideration the player’s request as well as the constant practice of the
Judge in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of the date of termination until the date of effective payment.
iii. Compliance with monetary decisions
28. Finally, taking into account the applicable Regulations, the 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.
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REF. FPSD-12273
29. In this regard, the 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.
30. Therefore, bearing in mind the above, the 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.
31. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form.
32. The 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
33. The 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 Judge decided that no procedural costs were to be imposed on the
parties.
34. Likewise, and for the sake of completeness, the 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.
35. Lastly, the Judge concluded his deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-12273
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Chamseddine Samti, is partially accepted.
2.
The Respondent, Al Sadd Club, must pay to the Claimant the following amounts:
- USD 17,000 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount 3,500 of as from 1 September 2023 until the date of effective payment;
- 5% interest p.a. over the amount 3,500 of as from 1 October 2023 until the date of effective payment;
- 5% interest p.a. over the amount 10,000 of as from 28 August 2023 until the date of effective payment;
- USD 38,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 7 October 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
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REF. FPSD-12273
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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