F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 15 July 2020

Decision of the

DRC Judge

passed via videoconference, on 15 July 2020,

regarding an employment-related dispute concerning the player Monther Omar Abd Elaziz Abu Amara

BY:

Johan van Gaalen (South Africa), DRC Judge

CLAIMANT:

Monther Omar Abd Elaziz Abu Amara, Jordan

represented by Mr Emad Hanayneh

RESPONDENT:

Al Fahaheel, Kuwait

I. FACTS OF THE CASE

1. On an unspecified date, the Jordanian player, Monther Omar Abd Elaziz Abu Amara (hereinafter: the Claimant or the player) and the Kuwaiti club, Al Fahaheel (hereinafter: the Respondent or the club) concluded an employment contract (hereinafter: the contract), valid as from 1 August 2019 until 31 May 2020.

2. According to article 4 of the contract, the club committed itself to pay to the player a total remuneration of USD 100,000, as follows: (i) USD 20,000 as an “advance payment”; and (ii) ten monthly salaries of USD 8,000 each.

3. Pursuant to article 6 of the contract, the club further undertook to pay to the player “a housing allowance of [Kuwaiti dinar] [KDW] 180 per calendar month”.

4. Furthermore, according to article 7 of the contract, the club also committed itself to pay to the player “transport allowance of [KDW] 125 throughout the duration of such Contract”.

5. As per article 20 of the contract, the further parties agreed that “in the case of illness or injury of the [player] as result of the playing or training for the club, the [club] shall provide the player with the specialist at a public hospital in Kuwait, and shall be subject to the treatment that is prescribed for him […]”.

6. On 24 March 2020, the player lodged a claim against the club before FIFA, requesting outstanding remuneration and compensation for breach of contract in the amount of USD 73,630 and KWD 2,304, plus 5% interest p.a. as from the due dates until the date of effective payment, broken down by the player as follows:

a) USD 8,000 corresponding to the monthly salary of November 2019;

b) KWD 1,054 as housing allowances;

c) KWD 1,250 corresponding to transportation allowances;

d) JOD [Jordanian Dinar] 12,500 (approx. USD 17,630) corresponding to the “costs of surgical operation and therapy”

e) Compensation for breach of contract in the amount of USD 48,000 corresponding to the monthly salaries as from December 2019 until and including May 2020.

7. In his claim, the player explained that despite having fulfilled his contractual obligations, the club failed to comply with its financial obligations as from November 2019, when the player suffered an injury. In this sense, the player explained that on 28 November 2019 he got injured during an official match. In support of his statements, the player submitted a “Medical Report” dated 14 December 2019, according to which he could not return to play football “before doing the operation and a complete physical therapy program for 6-8 months after the operation”.

8. In addition, the Claimant explained that the club started to adopt an “abusive conduct” with the player as from the moment he got injured, urging the latter to terminate the contract without providing the player with “a proper medication, surgery, physiotherapy and compensation”.

9. According to the player, on 23 December 2019, he informed the Respondent that he required “an urgent surgery” and “seven months’ physiotherapy with total cost of 8000 Jordanian dinars”. In its reply, the club unilaterally terminated the contract by means of its letter dated 23 December 2019, stating, inter alia, the following: “Whereas you have rejected medical treatment, and stopped coming to the Club since 29/11/2019, this constitutes harm of the rights and interests of the Club and is also a violation of the provisions of laws, regulations, and contract. So, we hereby notify you that the Club […] has decided to deprive you of your salaries during the period in which you stopped coming to the Club; i.e. from 29/11/2019 […]”.

10. As per the player, in reply to the aforementioned termination letter, he allegedly sent a letter dated 15 January 2020 to both the club and the Kuwaiti Football Association, whereby the player explained that the termination of the contract had been made without just cause, ordering the club to pay the outstanding monthly salaries of November and December 2019, as well as compensation for breach of contract. Having said this, the player granted the club a ten days’ deadline to remedy the default.

11. In spite of having been invited to do so, the Respondent did not provide its position pertaining to the matter at stake.

12. Upon FIFA’s request, the Claimant alleged having remained unemployed.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. First of all, the Dispute Resolution Chamber Judge (hereinafter: the DRC Judge) analysed whether he was competent to deal with the case at hand. In this respect, he referred to the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 24 March 2020 and decided on 15 July 2020. Therefore, the DRC Judge concluded that the 2019 edition of the Procedural Rules is applicable to the matter at hand.

2. Furthermore, the DRC 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 that the present claim was lodged on 24 March 2020, the March 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

3. Subsequently, the DRC Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b of the Regulations, he is competent to adjudicate on the present employment-related dispute between a Jordanian player and a Kuwaiti club.

4. His competence and the applicable regulations having been established, the DRC Judge entered into the substance of the matter, by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

5. In this respect, and in first instance, the DRC Judge recalled that the parties concluded an employment contract valid as from 1 August 2019 until 31 May 2020, in accordance with which the Claimant was entitled to a total remuneration of USD 100,000, as follows: (i) USD 20,000 as an “advance payment”; and (ii) 10 monthly salaries of USD 8,000 each. The DRC Judge further took note of the fact that the Claimant was also entitled to receive a monthly “housing allowance” of KWD 180 and a monthly “transportation allowance” of KWD 125.

6. Having said this, the DRC Judge acknowledged that on 23 December 2019, the Respondent unilaterally terminated the employment contract with the Claimant.

7. In continuation, the DRC Judge noted that the Claimant lodged a claim against the Respondent, maintaining that the latter shall be held liable for the early termination of the contract. In this regard, the DRC Judge took note of the fact that the Claimant argued that the Respondent did not have just cause to terminate the contract, as the latter terminated the employment relationship “without paying any of the Player’s dues (November and December 2019), medication expenses or to compensate the Player’s Contract value in any means”. As a consequence thereof, the Claimant requested payment of his outstanding dues as well as compensation for breach of contract.

8. The DRC Judge duly took note that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. Consequently, the DRC Judge deemed that the Respondent had renounced its right to defence and, thus, had accepted the allegations of the Claimant.

9. As a consequence of the aforementioned consideration, the DRC Judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken on the basis of the documents already on file, in other words, on the statements and documents presented by the Claimant.

10. Bearing in mind the foregoing, the DRC Judge acknowledged that the central issue in the matter at stake was to determine as to whether the contract was terminated on 23 December 2019 by the Respondent with or without just cause and to decide on the consequences thereof.

11. In this context, the DRC Judge firstly referred to the termination letter dated 23 December 2019 by means of which the Respondent alleged that it had just cause since the Claimant “rejected medical treatment, and stopped coming to the Club since 29/11/2019, this constitutes harm of the rights and interests of the Club and is also a violation of the provisions of laws, regulations, and contract”.

12. In this respect, the DRC Judge was eager to emphasise that, according to well-established jurisprudence of the DRC, and as a general rule, 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 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 ever be an ultima ratio measure.

13. In view of the above, taking into account the documentation submitted by the Claimant, the DRC Judge firstly deemed it crucial to outline that the Respondent apparently did not put the player in default prior to the termination by the Respondent.

14. Moreover, the DRC Judge pointed out that, according to the termination notice, the Respondent further acknowledged having “decided to deprive [the player] of [his] salaries during the period in which [he] stopped coming to the Club; i.e. 29/11/2019”.

15. In view of the aforementioned considerations, the DRC Judge wished to emphasise that it was up to the Respondent to prove that the Claimant allegedly refused to “appear for signing the medical examination”. However, taking into account that the Respondent failed to present its response to the claim, the DRC Judge underlined that the Respondent did not submit evidence in order to substantiate such allegation.

16. In this respect, the DRC found that more lenient and proportionate measures could have been taken by the Respondent before terminating the contract (e.g., among others, warnings, disciplinary sanctions, fines, etc.). In consideration that the Respondent had not presented reasons to justify such termination as an ultima ratio measure, the DRC Judge decided that the Respondent had no just cause to unilaterally terminate the employment relationship between the parties and, therefore, concluded that the Respondent had terminated the employment contract without just cause on 23 December 2019.

17. Bearing in mind the previous considerations, the DRC Judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent.

18. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per the employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination: (i) USD 8,000, corresponding to the monthly salary for November 2019; (ii) KDW 900, corresponding to five months of housing allowances, i.e. from August to December 2019; and (iii) KDW 625, corresponding to five months of transportation allowances, i.e. from August to December 2019;

19. In addition, taking into account the Claimant’s request, the DRC Judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the outstanding amounts as of the respective due dates until the date of effective payment.

20. As regards the medical costs requested by the Claimant, the DRC Judge wished to emphasise that, according to article 20 of the contract, the player should have received his treatment in Kuwait. However, the player travelled to his home country, Jordan, for medical treatment. In this regard, the DRC Judge pointed out that the contract did not include any clause on the basis of which the Respondent could be held liable for the payment of the Claimant’s medical costs incurred outside of the territory of Kuwait. Consequently, due to the lack of contractual basis, the DRC Judge stressed that the player’s claim for reimbursement of the medical costs must be rejected.

21. Moreover, taking into consideration art. 17 par. 1 of the Regulations, the DRC Judge decided that the Claimant is entitled to receive compensation for breach of contract from the Respondent.

22. In continuation, the DRC Judge focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC 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 Claimant 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.

23. In application of the relevant provision, the DRC 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 DRC Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

24. As a consequence, the DRC Judge determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

25. The DRC Judge then turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the DRC Judge to be essential. The DRC Judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC Judge to take into account both the existing contract and the new contract in the calculation of the amount of compensation.

26. Bearing in mind the foregoing, the DRC Judge proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its termination and concluded that the Claimant would have received USD 48,000 and KDW 1,525 as remuneration had the employment relationship been executed until its regular expiry date of 31 May 2020, i.e. the monthly salaries, housing benefits and transportation allowances as from 23 December 2019 until 31 May 2020. However, after having analysed the Claimant’s claim, the DRC Judge observed that the Claimant limited his claim for compensation to USD 48,000 and KDW 625. Consequently, taking into account the Claimant’s request, the DRC Judge concluded that the amount of USD 48,000 and KDW 625 served as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

27. In continuation, the DRC judge verified as to whether the Claimant 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 judge, 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 Claimant’s general obligation to mitigate his damages.

28. The DRC Judge noted that it appears from the documentation on file that the Claimant did not sign any contract with a new club within the relevant period. Thus, the Claimant had apparently not been able to mitigate damages. In this context, the DRC Judge declared that there is no remuneration to be taken into account in order to mitigate the amount of compensation for breach of contract.

29. Consequently, on account of the above-mentioned considerations and the specificities of the case at hand, the DRC Judge decided that the Respondent must pay USD 48,000 and KDW 625 to the Claimant as compensation for breach of contract in the case at hand, which is considered as fair and reasonable.

30. Furthermore, taking into consideration the Claimant’s claim, the DRC Judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of compensation as from 24 March 2020 until the date of effective payment.

31. Finally, the DRC Judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

32. Furthermore, taking into account the consideration under number II.2. above, the DRC Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with his 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.

33. In this regard, the DRC Judge pointed out 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 and for the maximum duration of three entire and consecutive registration periods.

34. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

35. Finally, the DRC 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. 24bis par. 3 of the Regulations.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. The claim of the Claimant, Monther Omar Abd Elaziz Abu Amara, is partially accepted.

2. The Respondent, Al Fahaheel, has to pay to the Claimant, the following amounts:

- USD 8,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2019 until the date of effective payment;

- KDW 305 plus 5% interest p.a. as from 1 September 2019 until the date of effective payment;

- KDW 305 plus 5% interest p.a. as from 1 October 2019 until the date of effective payment;

- KDW 305 plus 5% interest p.a. as from 1 November 2019 until the date of effective payment;

- KDW 305 plus 5% interest p.a. as from 1 December 2019 until the date of effective payment;

- KDW 305 plus 5% interest p.a. as from 1 January 2020 until the date of effective payment.

3. Furthermore, the Respondent has to pay to the Claimant, the following amounts:

- USD 48,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 24 March 2020 until the date of effective payment;

- KDW 625 plus 5% interest p.a. as from 24 March 2020 until the date of effective payment.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amounts in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due, plus interest as established above are not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 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 20 of the Procedural Rules).

CONTACT INFORMATION:

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