Labour Disputes
Texto da decisão
REF FPSD-5433
Decision of the
Dispute Resolution Chamber
passed on 4 August 2022
regarding an employment-related dispute concerning the player Benjamin
Tatar
COMPOSITION:
ONGARO Omar (Italy), Deputy Chairperson
TIMERA Khadija (Senegal), member
VAURASI Laurel (Fiji), member
CLAIMANT/COUNTER-RESPONDENT 1:
Benjamin Tatar, Bosnia and Herzegovina
Represented by SPFBiH
RESPONDENT/COUNTER-CLAIMANT:
Qasdia FC, Kuwait
Represented by Nilo Effori
INTERVENING PARTY:
FK Borac, Bosnia and Herzegovina
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I. Facts of the case
1.
On 24 July 2022, the Bosnian player Benjamin Tatar (hereinafter: the player) and the
Kuwaiti club Qasdia FC (hereinafter: the club) concluded an employment contract valid for
two seasons according to the calendar of the Kuwait Football Association (hereinafter: the
Contract)
2.
Article 3 of the Contract reads inter alia as follows:
“The two parties agreed that the financial dues for the current contract during the 2021/2022
sports season will be an amount of USD 225,000.
An amount of ($30,000) Thirty thousand US dollars only Within 5 working days from the player
(the second party) Arriving to the State of Kuwait and passes the medical examination prepared
by the club
An amount of USD 195,000 only, to be paid in 10 equal payments, at an amount of USD 19,500,
at the end of each month starting from August 2021 until May 2022.
The two parties agreed that the financial dues for the current contract during the 2022/2023
sports season will be an amount of USD 225,000.
An amount of USD 30,000 only after the player (the second party) joins the first party football
team at the start of the preparation period for the 2022/2023 sports season.
An amount of USD 195,000 only, to be paid in 10 equal payments, at an amount of USD 19,500,
at the end of each month starting from August 2022 until May 2023.”
3.
Article 7 of the Contract reads inter alia as follows
“The Second Party will receive (3) Airplane tickets per year during the period of the contract
Economy class (Sarajevo/Kuwait/ Sarajevo) during the contract and during his leave, for
himself, and his wife and son”.
4.
On 8 February 2022 the player sent a default notice to the club requesting the amount of
USD 39,000, equal to two monthly salaries and gave a deadline of 15 days to comply.
5.
On 22 February 2022, the club replied to the player via WhatsApp informing him that a
cheque equivalent to an amount of USD 39,964 was at his disposal at the Club’s premises.
6.
On 24 February 2022, the Claimant terminated the Contract alleging just cause.
7.
The player informed that he remained unemployed. However, based on the information
available on TMS, it was noted that on 9 June 2022, the Player found employment with
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the Bosnian club FK Borac (Hereinafter: Borac or the new club) valid from 9 June 2022 until
31 May 2023 with a monthly salary of Bosnian Mark (BAM) 650 (hereinafter: the Borac
Contract).
II. Proceedings before FIFA
8.
On 11 March 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
9.
According to the player, the club had “without any justification, and for period of time
corresponding to two months, failed to pay the Player his financial entitlements and despite
the Player’s notice, the Club did not remedy the breaches. In fact, it completely failed to reply
to the Player.”
10. In the player’s view, the club “demonstrated a total disinterest by not responding to many of
the correspondences sent by the Bosnian Union on behalf of the Player”.
11. The player states that at the time of termination the following amounts remained
outstanding:
12. The player filed the following requests for relief:
“The Player is requesting the FIFA DRC to determine the Player terminated the contract with
Qasdia Sporting Club with just cause on 24th February 2022 and order the Club to pay the
Player the following amounts:
USD 85 400 as outstanding remuneration, plus 5% interest p.a. as from the relevant payment
dates until the date of effective payment;
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USD 285 786 as the amount due as compensation for breach of contract + 5% interest as from
24 February 2022 until the date of effective payment;
The value of three roundtrip tickets plus 5% interest p.a. as from the due date;
USD 5000 as legal costs”.
b. Position and Counterclaim of the Respondent
13. According to the Respondent, the player did not have just cause to terminate the Contract
based on Article 14bis.
14. The club states that it has paid all the salaries since the beginning of the Contract.
15. The club emphasises that on 22 February 2022, within the 15 days’ deadline given in the
default notice, it informed the player that a cheque was at the Club’s premises for him to
collect.
16. The club further states that due to logistic problems the cheque was not collected on 22
February 2022. However, in the WhatsApp conversation the player stated that he would
collect the cheque on the following day.
17. Based on the above, the club deems that the player did not have just cause to terminate
the Contract, and the club had the “reasonable expectation that it would not be the case
given the long relationship between the Parties and especially because only 11.5% of the total
amount of the Contract was overdue”.
18. According to the club, against the player’s arguments, the player has received the
following amounts since signing the contract:
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19. Based on the above, the club deems that the player did not have just cause to terminate
the Contract “because the Player agreed to collect the check for the outstanding amount and
he failed to do so.”
20. The club submits that the Player must be ordered to pay compensation under the terms
of article 17 (1) of the FIFA RSTP, equal to the residual value of the Contract. The club
submits that at the time of the termination, the residual value of the Contract was USD
308,000.
21. The club further deems that sporting sanctions should be imposed on the player.
22. The club filed the following requests for relief:
The Club respectfully requests FIFA Dispute Resolution Chamber to:
(i) The claim filed by Al Qadsia Sports Club is accepted.
(ii) Order the Player to pay the Club the amount corresponding to USD 308,000 as
compensation for the breach of contract.
(iii) Grant the Claimant in conformity with the Swiss law and longstanding practice of the
Players’ Status Committee, interest on the outstanding compensation amount at a rate of 5%
(five per cent) per annum until the date of the effective payment.
c. Answer of the Claimant to the Counterclaim
23. According to the player, “it is clear from the conversation provided by the Club that the Player
tried to collect his payment on the very same day but that he was not able to enter the office
since all doors were closed. Hence, stating that the Player did not want to receive his dues is
fallacious and erroneous”.
24. The Player further states that he “presented himself for training on 23 February 2022, but
the Club ignored him and did not establish any contact with him”.
25. The Player underlines that he “only left the country on 1 April 2022 as the enclosed flight
ticket proves. Between 24 February 2022 and 1 April 2022, the Player kept training at the Club’s
training centre, on his own (as he had terminated his contract) next to the team training
collectively and right next to the Club’s office”.
26. The Player argues that should the FIFA DRC find in the alternative that the Player
terminated the contract without just cause, no compensation should be paid by the
Player, nor sporting sanctions to be imposed, “since the Club had demonstrated a clear lack
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of interest and was in any case in a situation of repeated breach of several of its obligations,
i.e. payment and demotion without justification.”
27. The player amended his requests for relief as follows:
“We respectfully invite the FIFA DRC:
- To reject the Club’s counterclaim in its entirety and to rule that the Player had just cause to
terminate the employment contract;
- In the alternative, to rule that none of the Parties were interested in maintaining the
contractual relationship and thereby to grant no compensation to any of the parties;
- Alternatively, to rule that the Player terminated without just cause but that the Club is entitled
to no compensation since its behaviour gave rise to and exacerbated the situation having led
to the Player’s termination of the contract.”
d. Position of the Intervening Party
28. FIFA invited FK Borac, the new club of the player, to file its position. However, it did not
furnished FIFA with its position as to the dispute.
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
took note that the present matter was presented to FIFA on 11 March 2022 and submitted
for decision on 4 August 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.
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 (March 2022 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 an
Bosnian player and a Kuwaiti 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.
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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 11 March 2022, the same 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 the parties strongly dispute whether the player had
just cause or not to terminate the contract and the consequences that follow.
35. In this context, the Chamber acknowledged that the player makes inconsistent arguments
regarding the alleged outstanding amounts. In the default notice of 8 February 2022 he
states that USD 39,000 where outstanding. However, in the claim he requests approx.
USD 85,000 for that concept. Furthermore, the Chamber observed that the player states
that the club completely ignored him and failed to reply, which appeared not to be the
case based on the evidence on file.
36. The Chamber turned to the evidence provided by the club and observed that it provides
several bank checks as proof of payments made. The DRC underlined that the player has
not been contested this evidence in his answer to the counterclaim. Hence, the DRC was
convinced that the amounts had been received by the player. Thus, the DRC was certain
that the amounts which would remain outstanding would be the salaries of December
2021 and January 2022.
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37. Based on the aforementioned consideration, the Chamber acknowledged that its task
was to determine, based on the evidence presented by the parties, whether the claimed
amounts had in fact remained unpaid by the Respondent and, if so, whether the formal
pre-requisites of art. 14bis of the Regulations had in fact been fulfilled.
38. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails 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).
39. The Chamber noted that the Claimant has provided written evidence of having put the
Respondent in default on 8 February 2022, i.e. at least 15 days before unilaterally
terminating the contract on 24 February 2022.
40. The Chamber also noted that considering the above Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, it is undisputed that the amount in dispute remained
unpaid since due to “logistic problems” the player was not able to collect the bank cheque
on the last day of the deadline given in the default notice.
41. The Chamber emphasised that the onus was on the club to ensure the payment of the
due remuneration within the given deadline. Moreover, the Chamber found no reason to
deviate from the constant and continuous approach of the Football Tribunal in this
regard.
42. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
43. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
44. The Chamber observed that the outstanding remuneration at the time of termination, are
equivalent to 2 monthly salaries under the contract, amounting to USD 19,500 each.
45. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber 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 39,000 (i.e. 2 times USD 19,500).
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46. Since the contract did not specify a due date, the DRC deemed that in line with the
constant jurisprudence of the Chamber, the salaries were due on the last day of each
month.
47. 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 until
the date of effective payment.
48. Having stated the above, the Chamber 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
Chamber 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.
49. In application of the relevant provision, the Chamber 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 Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
50. As a consequence, the members of the Chamber 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 Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
51. Bearing in mind the foregoing as well as the claim of the player, the Chamber 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 Chamber
concluded that the amount of USD 303,000 (i.e. the residual value from February 2022
until end of season 2022/2023) serves as the basis for the determination of the amount
of compensation for breach of contract.
52. In continuation, the Chamber verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by means of
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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.
53. Indeed, the player found employment with FK Borac. In accordance with the pertinent
employment contract, the player was entitled to the total remuneration of BAM 7,626.66,
approximately equal to USD 4,102 on the date of decision. Therefore, the Chamber
concluded that the player mitigated his damages in the total amount of USD 4,102.
54. Subsequently, the Chamber 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 Chamber 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 receive additional compensation.
55. In this respect, the DRC decided to award the amount of additional compensation of USD
4,102 (i.e. the amount successfully mitigation) in order not to exceed the residual value.
56. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 303,000 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
57. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of date of claim (i.e. 11 March 2022) until the date
of effective payment.
iii. Compliance with monetary decisions
58. 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.
59. 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
players, either nationally or internationally, up until the due amounts are paid. The overall
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maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
60. 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.
61. 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.
62. 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
63. 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.
64. 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.
65. Lastly, the DRC 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/Counter-Respondent, Benjamin Tatar, is partially accepted.
2.
The Respondent/Counter-Claimant, Qasdia FC, has to pay to the Claimant, the following
amount(s):
- USD 39,000 as outstanding remuneration plus 5% interest p.a. as follows:
On USD 19,500 from 1 January 2022 until the date of effective payment;
On USD 19,500 from 1 February 2022 until the date of effective payment.
- USD 303,000 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 11 March 2022 until the date of effective payment.
3.
Any further claims of the Claimant/Counter-Respondent are rejected.
4.
The counterclaim of the Respondent/Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
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).
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