Labour Disputes
Texto da decisão
REF. FPSD-8959
Decision of the
Dispute Resolution Chamber
passed on 4 May 2023
regarding an employment-related dispute concerning
the player Sadok Touj
BY:
Omar Ongaro (Italy), Deputy Chairperson
Tomislav Kasalo (Croatia), member
Calum Beattie (Scotland), member
CLAIMANT / COUNTER-RESPONDENT I:
Sadok Touj, Tunisia
Represented by Messrs Ali Abbes and Mohamed Rokbani
RESPONDENT / COUNTER-CLAIMANT:
Al-Ahly Benghazi SC, Libya
COUNTER-RESPONDENT II:
CS Sfaxien, Tunisia
pg. 2
REF. FPSD-8959
I. Facts of the case
1.
On 20 September 2022, the Tunisian player Sadok Touj (hereinafter the player) and the
Libyan club Al-Ahly Benghazi SC (hereinafter the club) concluded an employment
agreement (hereinafter the Employment Agreement) valid until the end of the
season 2022/2023.
2.
In Clause 4 of the Employment Agreement, the player and the club (jointly referred to as
the parties) agreed upon the following financial conditions:
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−
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USD 25,000 upon the receipt of the ITC.
USD 25,000 on 1 January 2023.
USD 10,000 on 1 April 2023.
USD 10,000 on 1 June 2023.
USD 20,000 by the end of the season subject to the participation of at least 50% of
official matches.
3.
In accordance with Clause 13 of the Employment Agreement, “the disputes that arise
between the parties shall be solved through amicable solutions, and if that fails, the dispute
shall be settled by the Libyan football federation or the International Federation of Federation
of Football (FIFA).”
4.
It remained undisputed that the player received an amount of USD 25,000.
5.
On 3 January 2023, the player sent a default notice to the club, requesting USD 25,000,
corresponding to the sum payable on 1 January 2023. The player granted the club a
deadline of 15 days to pay the outstanding amounts, however, to no avail.
6.
What is more, it shall be noted that, in the same notice, the player alleged that the club
didn’t provide him with “a residence card and permit work allowing him to be in a legal
situation in Libya despite many promises” and also requested the said documents within the
deadline of 15 days.
7.
On 8 January 2023, the club sent the following reply to the player:
“1. The contract between the club and the player in amount of 90 divided into four instalment
the first instalment 25,000$ on receiving the ITC, the club paid it in cash when received the
ITC.
2. After we finished the first round of the league the player ask to terminate his contract, or
let him transfer to stade Tunisien Club, we said to him just go to your country in vacation
and when you back we will talk.
3. All players are in holiday from 26th December until 3 January 2023, the first training
session; the player did not come back, and sent the notice on 3th January!
4. The second payment must pay on 1st January while the player in Tunisia and the Libyan
banks are in holiday until Sunday 8th January 2023.
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REF. FPSD-8959
5. On 3 January, we sent to the player an entry visa to Libya, to come back to the training and
receive his money.
6. We gave the player this warning to come back within 3 days, or the club must take a legal
action.”
8.
In his reply of 10 January 2023, the player insisted that the amount of USD 25,000 remained
outstanding and requested the payment thereof. The player further argued that “providing
the player with a residence card and a work permit is your responsibility and you have no
arguments justifying the failure to provide the player with such documents necessary to be in a
legal working situation in Libya.”
9.
On 19 January 2023, the player terminated the Employment Agreement with the club for
outstanding payments.
10. On 19 January 2023, the player signed a new employment agreement (hereinafter the New
Employment Agreement) with the Tunisian club Stade Tunisien (hereinafter the new club)
valid as from the date of signing until 30 June 2025.
In accordance with Clause 3 of the New Employment Agreement, the player is entitled to
the following payments:
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−
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Season 2022/2023 (approx. 5.5 months): TND (Tunisia Dinar) 1,000/month
Season 2023/2024 (12 months): TND 4,500/month and a sell-on fee of TND 85,000
Season 2024/2025 (12 months): TND 5,000/month and a sell-on fee of TND 90,000
II. Proceedings before FIFA
11. On 19 January 2023, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
12. The requests for relief of the Claimant were the following:
1. “The contract between the club and the player in amount of 90 divided into four instalment
the first instalment 25,000$ on receiving the ITC, the club paid it in cash when received the
ITC.
2. After we finished the first round of the league the player ask to terminate his contract, or
let him transfer to Stade Tunisien Club, we said to him just go to your country in vacation and
when you back we will talk.
3. All players are in holiday from 26th December until 3 January 2023, the first training
session; the player did not come back, and sent the notice on 3th January!
4. The second payment must pay on 1st January while the player in Tunisia and the Libyan
banks are in holiday until Sunday 8th January 2023.
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REF. FPSD-8959
5. On 3 January, we sent to the player an entry visa to Libya, to come back to the training and
receive his money, but he didn't come back, and signed the new contract with Stade Tunisien
Club.
For all of the above, we are asking the player, to pay the demanding payment of the all
contract ($90,000), and compensation for ($50,000).”
b. Position of the club
13. In its reply, the club submitted a counterclaim against the player with the following request
for relief:
“The contract between the club and the player in amount of 90 divided into four instalment
the first instalment 25,000$ on receiving the ITC, the club paid it in cash when received the
ITC.
After we finished the first round of the league the player ask to terminate his contract, or let
him transfer to Stade Tunisien Club, we said to him just go to your country in vacation and
when you back we will talk.
All players are in holiday from 26th December until 3 January 2023, the first training session;
the player did not come back, and sent the notice on 3th January!
The second payment must pay on 1st January while the player in Tunisia and the Libyan banks
are in holiday until Sunday 8th January 2023.
On 3 January, we sent to the player an entry visa to Libya, to come back to the training and
receive his money, but he didn't come back, and signed the new contract with Stade Tunisien
Club.
For all of the above, we are asking the player, to pay the demanding payment of the all
contract ($90,000), and compensation for ($50,000).”
c. Position of the player
14. In his reply to the counterclaim, the player asserted that:
“Firstly and foremost, the respondent didn’t provide any proof of payment of the outstanding
amount neither within the regulatory deadline of 15 days nor until this date.
Secondly, as we stated in our claim, the default notice sent to the club on 3 January 2023
contains the full bank details of the player and normally the club had no difficulty to transfer
the amount until the date of the termination i.e 19 January 2023.
Consequently, the counterclaim of the club is groundless and without any legal or factual
support and has to be rejected by the honorable chamber.”
d. Position of the new club
15. In its reply to the counterclaim, the New Club asserted that it signed the player as a free
agent and requested to reject the claim of the club.
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REF. FPSD-8959
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 19 January 2023 and submitted
for decision on 4 May 2023. 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.
17. 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 2023 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 player from
Tunisia and a club from Libya.
18. 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 (March 2023 edition), and
considering that the present claim was lodged on 19 January 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
19. 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
20. 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
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REF. FPSD-8959
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
21. 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 concerning a
termination of a contract on the basis of outstanding payment of USD 25,000 due on
1 January 202, in accordance with art. 14bis of the Regulations, as well as for not providing
a work permit.
22. On the other hand, the DRC equally noted that the club lodged a parallel counterclaim and
the arguments of the club that the delay of the 1 January 2023 payment occurred due to
the holiday season in Libya (i.e. the bank being closed).
23. In this context, the Chamber acknowledged that it 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.
24. 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).
25. The Chamber noted that the player claims not having received his remuneration
corresponding to EUR 25,000, which – as per the structure of the contract – corresponds to
more than two outstanding salaries. Furthermore, the Chamber noted that the player has
provided written evidence of having put the club in default on 3 January 2023, i.e. at least
15 days before unilaterally terminating the contract on 19 January 2023.
26. The Chamber also noted that in the case at hand the club bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
27. In this respect, the DRC noted that club failed to provide any evidence proving that it made
the respected payment nor that the banks opened only on 8 January 2021 so that the player
should have – in good faith – waited for the payment, i.e. evidence provided by the club
does not prove beyond doubt the payment of the amounts claimed as outstanding by the
player.
28. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations and, consequently, rejected the
counterclaim of the club.
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REF. FPSD-8959
29. For the sake of completeness, the Chamber finally wished to point out that the player also
did not have a valid work permit and that his request concerning this issue towards the
club remained unanswered.
ii. Consequences
30. 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 club.
31. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to USD 25,000.
32. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the clubis liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, i.e. USD 25,000.
33. 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 2 January 2023 until the date of effective
payment.
34. 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.
35. 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.
36. 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.
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REF. FPSD-8959
37. 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 20,000 (i.e. the April and January payment) serves as
the basis for the determination of the amount of compensation for breach of contract.
38. 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 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.
39. Indeed, the player found employment with Stade Tunisien. In accordance with the
pertinent employment contract, the player mitigated his damages in the total amount of
TND 5,387.09 (5 months times TND 1,000 and pro rata 12 days of January TND 387.09),
which corresponds to approximately USD 1,800.
40. 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.
41. In this respect, the DRC decided to award the amount of additional compensation of three
times the monthly remuneration of the player yet that, as per the last sentence of art. 17
par. 1 lit. ii) of the Regulations, the overall compensation may never exceed the rest value
of the prematurely terminated contract.
42. 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 20,000 to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
43. 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 19 January 2023 until the date of effective
payment.
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iii. Compliance with monetary decisions
44. 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.
45. 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
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
46. 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.
47. 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.
48. 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
49. 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.
50. 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.
51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8959
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent 1, Sadok Touj, is partially accepted.
2.
The Respondent / Counter-Claimant, Al-Ahly Benghazi SC, must pay to the Claimant /
Counter-Respondent 1 the following amount(s):
- USD 25,000 as outstanding remuneration plus 5% interest p.a. as from 2 January 2023
until the date of effective payment;
- USD 20,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 19 January 2023 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent 1 are rejected.
4.
The claim 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 / Counter-Claimant 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 / CounterRespondent 1 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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REF. FPSD-8959
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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12