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 19 November 2020

Decision of the

Dispute Resolution Chamber

passed on 19 November 2020,

regarding an employment-related dispute concerning the player Mouhoub Nait Merabet

COMPOSITION:

Geoff Thompson (England), Chairman Daan de Jong (Netherlands), member Michele Colucci (Italy), member

CLAIMANT:

MOUHOUB NAIT MERABET, Algeria

Represented by Mr. Loïc Alves

RESPONDENT:

CLUB SPORTIF SFAXIEN, Tunisia

I. FACTS OF THE CASE

1. On 12 September 2019, the Algerian player Mouhoub Nait Merabet (hereinafter: player or Claimant) and the Tunisian club Sportif Sfaxien (hereinafter: club or Respondent) signed an employment contract (hereinafter: the contract) valid as of 12 September until 30 June 2022.

2. According to art. 6 of the contract, the player was entitled to receive the following remuneration:

 Season 2019/2020: monthly salary of EUR 2,500 and a “prime de rendement” (bonus) of EUR 40,000;

 Season 2020/2021: monthly salary of EUR 3,000 and “prime de rendement” (bonus) of EUR 50,000;

 Season 2021/2022: monthly salary of EUR 3,500 and “prime de rendement” (bonus) of EUR 60,000.

3. Moreover, the player was entitled to receive:

 1,000 Tunisian Dinar (TND) during the entire period of the contract for accommodation and food;

 2 flight tickets per season;

 If the player starts in 10 matches with the first team, the contract shall be increased of 10%.

4. According to art. 9 of the contract, the club could terminate the contract at any time by paying to the player a compensation equivalent to two monthly salaries.

5. On 9 June 2020, FIFPRO, on behalf of the player, wrote to the club about the unbearable situation of the player. First, FIFPRO contested the fact that the club had taken the player’s passport to launch the visa process and then refused to return it to him. In this regard, FIFPRO contested that the player still does not hold a valid visa. FIFPRO emphasised that the player does not have any identification or document allowing him to legally stay in Tunisia. FIFPRO thus asked the club to return the passport to the player within 3 days and to perform all necessary processes for the delivery of a visa within the next 7 days.

6. By means of letter dated 15 June 2020, FIFPRO asked FIFA to provide the player with a copy of his contract as the club refused to provide him with a copy.

7. On 16 June 2020, FIFPRO noted that the club had failed to return the player’s passport. FIFPRO granted the club 3 days to remedy the player’s situation. Moreover, FIFPRO noted that 6 monthly salaries as well as the bonus remained outstanding. FIFPRO therefore requested the payment of said amounts within 15 days.

8. On 19 June 2020, FIFPRO regretted the absence of reply of the club and contested the fact that the player had not been invited to the training camp organised by the club. This non-invitation is according to FIFPRO a breach of the club’s obligation to provide the player with a professional activity. As such, FIFPRO requested the club to reintegrate the player within 3 days and allow him to join the training camp. Note: the player submitted a WhatsApp message from the club with the list of players called for the training camp.

9. On 19 June 2020, FIFA TMS Helpdesk provided the player with a copy of his contract.

10. By means of a letter dated 23 June 2020, FIFPRO observed that the player’s situation was getting worse as the club forced the player to train alone, doing running and fitness exercises. Given these inadequate individual trainings, FIFPRO granted the club 3 days to reintegrate the player in the first team.

11. On 24 June 2020, the player contacted the “Procureur de la République” (free translation from French: State prosecutor) stating that the club refused to return his passport, despite various requests.

12. In a letter dated 26 June 2020, FIFPRO mentioned that on 25 June 2020 two representatives of the club went to the player’s hotel to inform him that they would return the passport on the next day. FIFPRO alleges that on 25 June 2020, the police called the club to impose the return of the passport to the player based on a document stamped by the prosecutor’s office. However, on the next day, the club did not return the passport, leaving the player with no other choice but to contact the police once again. The club allegedly accepted to return the passport on the next day. In this context, FIFPRO asked the club to comply with its obligation and to return the player’s passport.

13. On 3 July 2020, the player observed that the amounts requested in his letter dated 16 June 2020 remained outstanding and therefore terminated his contract with immediate effect.

14. On 10 July 2020, the player lodged a claim for breach of contract against the club in front of FIFA, requesting the following monies:

 Outstanding remuneration:

o EUR 17,500 as monthly salaries;

o EUR 40,000 as outstanding fixed bonus;

o TND 10,000 as outstanding monies for accommodation and food.

 5% interest p.a. on the aforementioned amounts as from the relevant due dates.

 Compensation for breach of contract:

o EUR 188,000 as the residual value of the contract;

o TND 24,000 as the housing costs for the remaining period of the contract (TND 1,000 x 24 months);

o the value of 4 return flight tickets between Tunis and Paris (total of 8 tickets) to be calculated by FIFA Travel;

 5% interest p.a. on the aforementioned amounts as from the date of termination.

 Additional 6 months salaries in view of the egregious circumstances (confiscation of passport; no work/residence visa; training alone; no reply from the club; lying to the hotel to prevent his departure; failed to pay the player housing costs).

 Additional compensation of EUR 94,000 equivalent to 12 monthly salaries on a pro-rata basis in accordance with the specificity of sport.

 EUR 5,000 as legal costs.

15. In his claim, the player held that the club never replied to any of his letters, limiting its interactions to verbal proposals to mutually terminate the contract under unacceptable conditions.

16. Following the termination of the contract, the player held that the club informed the hotel in which he stayed that a sum of money had been given to the player in order to pay for his room. In this context, the hotel refused to let the player leave on 3 and 4 July. The player was forced to sneak out of the hotel in humiliating circumstances, having to bypass security and run away in the first available taxi.

17. The player argued that he had just cause to terminate the contract pursuant to art. 14 (repeated and continuous breach) and 14bis (non-payment of salaries) of the Regulations.

18. According to the player, the club only paid 3 monthly salaries since the beginning of the contract. At the moment of termination, 7 monthly salaries were outstanding (from December 2019 to June 2020).

19. The player also emphasised that the payment of the bonus was fixed and not subject to the fulfilment of any condition.

20. The player also argued that the club was in breach of art. 18.4 of the Regulations as it never obtained the necessary and valid residence/work visa authorising the player to legally reside and work in Tunisia. The club rather used this to confiscate the player’s passport, pretending that it needed it for the process of requesting a visa.

21. The player also stated that the club excluded him from the team, which is contradictory to its obligation to provide him with suitable competition conditions. No justification was ever given to the player.

22. In its reply, the club fully rejected the player’s claim. In particular, it claimed that right after the signature of the contract the club was surprised by the lack of commitment of the player, who allegedly missed training sessions without previous notice or authorisation. His absence during the months of January and February 2020 can allegedly be proven by minutes of meetings and witness statements.

23. His unprofessional behaviour was the reason for his non-participation in any match of the Tunisian championship. Still the club claimed that he was paid his full salary from September to December 2019.

24. The club further rejected any accusations of the player regarding the confiscation of his passport. In this respect, it alleged to be in possession of a mere copy of his passport, the original document being at the player’s disposal. It also claimed not being aware of any request made in front of the State prosecutor or any claim filed with the local police, these being only an attempt of the player to justify his unauthorised absence in January and February 2020.

25. Finally, the club claimed that after the pause made during the months of March, April and May 2020 due to the Covid-19 pandemic, the player refused to rejoin the club and claimed the payment of his full salaries for the aforementioned months, against the FIFA and Tunisian FA guidelines, as per which the player’s salaries would be reduced to 50% during this period.

26. Thus, the club requests that the player’s claim be entirely rejected.

27. The player informed FIFA that he remained unemployed since the contractual breach.

II. CONSIDERATIONS OF THE DRC

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 10 July 2020. Consequently, the DRC concluded that the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition October 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension.

3. Furthermore, 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 Player (edition October 2020), and considering that the present claim was lodged on 10 July 2020, the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

5. First of all, the members of the Chamber recalled that the parties concluded a contract, valid as of 12 September 2019 until 30 June 2022.

6. In continuation, the DRC noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the contract with just cause on 3 July 2020 since the club failed to remit remuneration corresponding to 6 monthly salaries and a bonus. Furthermore, the player held that his passport was confiscated, the club failed to organise his VISA, the player was excluded from the training camp and forced to train alone. Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract.

7. The Respondent, for its part, rejected the claim, held that the player terminated the contract without just cause and argued that the player was absence without authorisation during January and February 2020. What is more, the Respondent argued that the salaries between March and May 2020 “shall be reduced by 50% in accordance with FIFA’s and the Tunisian FA’s regulations”.

8. Having said this, the DRC acknowledged that the central issue in the matter at stake was to determine as to whether the contract was terminated by the Claimant with or without just cause and to decide on the consequences thereof.

9. With the above in mind, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

10. On account of the above, the DRC recalled that the termination of the player on 3 July 2020 followed several reminders sent by FIFPR to the club on behalf of the player, regarding the following alleged breaches of the club:

- Non-payment of salaries as from December 2019;

- Confiscation of player’s passport;

- The club did not organise his visa;

- Exclusion from training camp organised by the club;

- The player was forced to train alone.

11. The Chamber further observed that, in particular, in his default notice of 16 June 2020, the player requested the payment of his outstanding remuneration corresponding to 6 monthly salaries, corresponding to the salaries as of December 2019 to May 2020, as well as the bonus within the next 15 days.

12. Subsequently, the DRC turned its attention to the arguments of the Respondent, which acknowledged not having paid the player as from January 2020, but held having being entitled to do so as the player was allegedly absent during January and February 2020. The Chamber noted that the club failed to submit any documentation in support of said argument.

13. Further, the members of the Chamber took note of the club’s allegation that the salaries as from March until May 2020 were reduced by 50% in accordance with FIFA’s and the Tunisian FA’s regulations. The DRC pointed out that FIFA’s guidelines certainly do not establish such reduction and that no evidence related to the reduction of the salaries imposed by the Tunisian FA or any private or collective agreement reached with the player(s) was provided by the club.

14. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

15. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a player’s salary.

16. In this context, the DRC considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

17. Regarding the payment receipts submitted by the club, the Chamber wished to emphasize that either they cannot be allocated to a specific month or refer to a month which is not being claimed by the player. Moreover, the DRC noted that the club rejected to have confiscated the player’s passport, but failed to reply to all his default notices requesting the restitution. Finally, the members of the Chamber pointed out that the club does not dispute the accusation of not having organised the player’s visa.

18. As a consequence, and taking into account art. 12 par. 3 of the Procedural Rules, the DRC established that the club did not discharge its burden of proof that it complied with the contract.

19. In this context, the members of the Chamber established that the Respondent failed to proof that it actually remitted the amounts claimed by the player. In this context, the members of the Chamber established that the Respondent, without any valid reason, failed to remit to the Claimant remuneration totalling EUR 17,500 and TND 10,000 corresponding to 7 monthly salaries and accommodation costs.

20. Consequently, considering that the Respondent had thus repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 3 July 2020 in accordance with art. 14bis of the Regulations and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.

21. Subsequently, prior to establishing the consequences of the termination of the employment contract with just cause by the Claimant in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it, in general, had to address the issue of unpaid remuneration at the moment when the contract was terminated by the Claimant.

22. Bearing in mind the considerations above, and in accordance with the general legal principle of pacta sunt servanda, the Chamber established that the Claimant is entitled to EUR 17,500 and TND 10,000, corresponding to salaries between December 2019 until June 2020 and accommodation costs (10x TND 1,000).

23. Regarding the fixed bonus claimed by the player, the Chamber determined that taking into account the information in TMS, the 2019/2020 season in Tunisia finished on 30 September 2020. The fixed performance bonus (not conditional) has no due date in the contract, thus we deem it is due at the end of the season. Consequently, this amount was not outstanding at the time of termination.

24. In addition, taking into consideration the player’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the respective due dates.

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

26. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of 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 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.

27. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains 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.

28. As a consequence, the members of the Chamber 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 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter.

29. The members of the Chamber then turned their 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 Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

30. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from the date of termination with just cause by the Claimant until its natural expiration, bearing in mind that he would have received in total EUR 228,000 and TND 24,000 as remuneration including bonuses and accommodation costs for the period as from July 2020 until 30 June 2022. Consequently, the Chamber concluded that the amounts of EUR 228,000 and TND 24,000 serve as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

31. In continuation, the Chamber 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, 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.

32. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an additional compensation of three monthly salaries, subject to the early termination of the contract being due to overdue payables. In case of egregious circumstances, the additional compensation may be increased up to a maximum of six monthly salaries, whereby the overall compensation may never exceed the rest value of the prematurely terminated contract.

33. In this respect, the Chamber noted that the Claimant did not find any new employment as of 3 July 2020. Therefore, the members pointed out that no additional compensation can be awarded, as the overall compensation may never exceed the rest value of the prematurely terminated contract.

34. Consequently, on account of the above-mentioned considerations, the Chamber decided that the Respondent must pay the amounts of EUR 228,000 and TND 24,000 as compensation for breach of contract to the Claimant, which is considered by the Chamber to be a fair and reasonable amount.

35. Furthermore, the Chamber decided to award the player the value of a flight ticket to return to his home country, i.e. in the amount of CHF 160.55, determined by FIFA Travel.

36. In addition, taking into consideration the player’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the date of the claim, i.e. 10 July 2020, until the date of effective payment.

37. Moreover, the Chamber rejected any claim for legal expenses and procedural compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

38. The DRC concluded its deliberations by rejecting any further claim of the Claimant.

39. Furthermore, taking into account the consideration under number II./3. above, the Chamber referred to par. 1 and 2 of art. 24bis 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.

40. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the Respondent. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban 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.

41. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amount 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.

42. Finally, the Chamber recalled that the above-mentioned sanction 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

1. The claim of the Claimant, Mouhoub Nait Merabet, is partially accepted.

2. The Respondent, Club Sportif Sfaxien, has to pay to the Claimant, the following amounts:

- EUR 17,500 as outstanding remuneration plus 5% interest p.a. as follows:

o On EUR 2,500 as from 1 January 2020 until the date of effective payment;

o On EUR 2,500 as from 1 February 2020 until the date of effective payment;

o On EUR 2,500 as from 1 March 2020 until the date of effective payment;

o On EUR 2,500 as from 1 April 2020 until the date of effective payment;

o On EUR 2,500 as from 1 May 2020 until the date of effective payment;

o On EUR 2,500 as from 1 June 2020 until the date of effective payment;

o On EUR 2,500 as from 1 July 2020 until the date of effective payment;

- Tunisian Dinars (TND) 10,000 as outstanding remuneration plus 5% interest p.a. as follows:

o On TND 1,000 as from 1 September 2019 until the date of effective payment;

o On TND 1,000 as from 1 October 2019 until the date of effective payment;

o On TND 1,000 as from 1 November 2019 until the date of effective payment;

o On TND 1,000 as from 1 December 2019 until the date of effective payment;

o On TND 1,000 as from 1 January 2020 until the date of effective payment;

o On TND 1,000 as from 1 February 2020 until the date of effective payment;

o On TND 1,000 as from 1 March 2020 until the date of effective payment;

o On TND 1,000 as from 1 April 2020 until the date of effective payment;

o On TND 1,000 as from 1 May 2020 until the date of effective payment;

o On TND 1,000 as from 1 June 2020 until the date of effective payment;

- EUR 228,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 10 July 2020 until the date of effective payment;

- TND 24,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 10 July 2020 until the date of effective payment;

- Swiss Francs (CHF) 160.55 as flight ticket plus 5% interest p.a. as from 10 July 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

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 amount 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 amount due, plus interest as established above is 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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