F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 22 November 2019

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 22 November 2019,

by Pavel Pivovarov (Russia), DRC judge

on the claim presented by the player,

Mohamad Ghaddar, Lebanon

represented by Mr Pedro Macierinha

as Claimant

against the club,

Kelantan Football Association, Malaysia

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 11 February 2018, the Lebanese player, Mohamad Ghaddar, (hereinafter: the Claimant), and the Malaysian club, Kelantan Football Association, (hereinafter: the Respondent) concluded an employment contract valid as from the date of signature until 30 November 2018 (hereinafter: the contract).

2. According to the schedule A annexed to the contract, the Claimant was entitled to receive to a monthly salary of USD 10,000 payable by no later than the 7th of the following month as well as a sign on fee of USD 60,000.

3. By letter dated 6 March 2018, the Respondent put the Claimant in default arguing that his performances were not good enough. This letter was reiterated on 22 March 2018 and 29 April 2018.

4. On 2 May 2018, the player was injured during a game.

5. On 21 May 2018, the Claimant and the Respondent signed a “mutual termination agreement” (hereinafter: the termination agreement”), in accordance with which the contract has been terminated on that date.

6. In accordance with the termination agreement, the Respondent acknowledged that it owed the Claimant the amount of USD 40,000 and that it, consequently, would pay the Claimant said amount, as follows:

• USD 10,000 on 25 May 2018;

• USD 5,000 on 25 June 2018;

• USD 5,000 on 25 July 2018;

• USD 5,000 on 25 August 2018;

• USD 5,000 on 25 September 2018;

• USD 5,000 on 25 October 2018;

• USD 5,000 on 25 November 2018.

7. In accordance with art. 4 of the termination agreement, ‘such mutual termination shall be without any claims for compensation of any kind by the club or the player’.

8. In addition, pursuant to art. 6 of the termination agreement, ‘the club will refund no more than USD 5,000 for cost of operation for injury case with PKNP FC vs. Kelantan FA on 2 May 2018.’.

9. On 12 June 2018, the Claimant put the Respondent in default requesting the payment of the first instalment under the termination agreement as well as the USD 5,000 for the medical costs. The Claimant gave 10 days for the Respondent to remedy its default.

10. On 9 December 2018, the Claimant put the Respondent in default, requesting the payment of USD 75,000 corresponding to the residual value of the contract plus USD 5,000 related to the operation costs due to his injury. Consequently, the Claimant was of the opinion that since he did not receive the amounts from the termination agreement, the contract had been terminated without just cause. He gave 10 days to the Respondent to remedy its default.

11. On 21 December 2018, the Claimant lodged a claim against the Respondent in front of FIFA for breach of contract, claiming the total amount of USD 75,000, plus 5% interest as from 21 May 2018, broken down as follows: a. USD 70,000 for the salaries of May 2018 to November 2018 for USD 10,000 each; b. USD 5,000 for the reimbursement of the operation cost incurred due to his injury.

12. The Claimant considered that since he did not receive the amounts due under the termination agreement, and since he ‘was deceived’ into signing the termination agreement, that meant that the contract was terminated by the Respondent without just cause.

13. Consequently, the Claimant requested the residual value of the contract as compensation for breach of contract, or subsidiarily the amounts due under the termination agreement.

14. In its reply to the claim of the Claimant, the Respondent argued that the contract had been terminated due to the Claimant’s alleged ‘disrespectful behaviour toward the club’s president’ and his performance as he ‘did not meet the expectation of the head coach’. In this regard, the Respondent allegedly sent to the Claimant several default notices.

15. Moreover, the Respondent acknowledged a debt of USD 45,000 in accordance with the termination agreement, but argued that it was facing ‘serious financial difficulties’.

16. In his replica, the Claimant contested receiving the termination letter as well as the default notices of the Respondent and that even if his performance was not good enough, which the Claimant contested, it would not have been a valid reason to terminate the contract. In addition, the Claimant reiterated his previous arguments.

17. In its duplica, the Respondent held that the termination agreement was signed by both parties and was not contested and reiterated its previous comments.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether it was competent to deal with the matter at stake. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 21 December 2018 and decided on 22 November 2019. Taking into account 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), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the DRC judge referred to art. 3 par. 1 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 on the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between a Lebanese player and a Malaysian club.

3. Furthermore, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 21 December 2018, the June 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge 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. In this respect, the DRC judge acknowledged that, on 11 February 2018, the Claimant and the Respondent concluded an employment contract valid as from the date of signature until 30 November 2018, pursuant to which the Respondent undertook to pay to the Claimant a monthly salary of USD 10,000 payable by no later than the 7th of the following month as well as a sign on fee of USD 60,000.

6. Moreover, the DRC judge acknowledged that, on 21 May 2018, the Claimant and the Respondent signed the termination agreement in accordance with which the contract has been terminated on the same date and the Respondent acknowledged that it owed the Claimant the amount of USD 40,000, payable in instalments.

7. In addition, the DRC judge took note that, according to art. 4 of the termination agreement, ‘such mutual termination shall be without any claims for compensation of any kind by the club or the player’.

8. Moreover, the DRC judge noted that pursuant to art. 6 of the termination agreement, ‘the club will refund no more than USD 5,000 for cost of operation for injury case with PKNP FC vs. Kelantan FA on 2 May 2018.’.

9. Having recalled the above, the DRC judge observed that, the Claimant, in his claim, requested compensation for breach of contract in the amount of USD 75,000 plus 5% interest as from 21 May 2018.

10. The DRC judge further noted that, the Claimant considered that since he did not receive the amounts due under the termination agreement, and since he ‘was deceived’ into signing the termination agreement, that meant that the contract was terminated by the Respondent without just cause and that consequently the Claimant requested the residual value of the contract as compensation for breach of contract, or subsidiarily the amounts due under the termination agreement.

11. Moreover, the DRC judge took note that the Respondent, for its part, maintained that the contract had been terminated due to the Claimant’s alleged ‘disrespectful behaviour toward the club’s president’ and his performance as he ‘did not meet the expectation of the head coach’. In this regard, the club allegedly sent to the player several default notices.

12. The DRC judge further noted that the Respondent acknowledged a debt of USD 45,000 in accordance with the termination agreement, but argued that it was facing ‘serious financial difficulties’.

13. However, the DRC judge noted that the Claimant, in his replica, contested receiving the termination letter as well as the default notices of the Respondent and that even if his performance was not good enough, which the Claimant contested, it would not have been a valid reason to terminate the contract. In addition, the Claimant reiterated his previous arguments.

14. Furthermore, the DRC judge took note of the fact that the Respondent, in its duplica, held that the termination agreement was signed by both parties and was not contested and it reiterated its previous comments.

15. At this point, the DRC judge deemed it appropriate to remind the parties of the principle of burden of proof, reflected also in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right carries the burden of proof. In the present case, the DRC judge pointed out that the Claimant bore the burden of proving that he had been mislead into signing the termination agreement and that he would therefore be entitled to claim based on the employment contract.

16. The DRC judge noted that, the Claimant however provided no substantial evidence in that sense.

17. In this context, the DRC judge noted that the parties signed the termination agreement on 21 May 2018 – which is not contested by the player – by means of which the Respondent recognized that it still owed an amount to the Claimant and subsequently agreed upon the manner of payment of such amount. In this respect, the DRC judge stressed that the mentioned agreement was freely agreed by the parties and therefore valid, and that the Respondent has not fulfilled its obligations towards the Claimant. In addition, he referred to the longstanding jurisprudence according to which a party signing a document of legal importance without full knowledge of its content is in principle still liable to bear the legal consequences deriving thereof.

18. In light of the above, the DRC judge highlighted that the termination agreement was validly concluded between the parties and thus the amount of USD 45,000, representing the Claimant’s outstanding remuneration in accordance with the termination agreement, remains outstanding, as acknowledged by the Respondent.

19. On account of the above considerations, the DRC judge decided that, pursuant to the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay to the Claimant the total amount of USD 45,000.

20. In addition, and considering the Claimant’s request, the DRC judge decided to award the latter 5% interest p.a. on the above mentioned amount as of the respective due dates.

21. The DRC judge concluded its deliberations in the present matter by rejecting any further claim of the Claimant.

22. Furthermore, taking into account the consideration under number II./3. above, the DRC judge 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.

23. 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.

24. 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.

25. 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 DRC judge

1. The claim of the Claimant, Mohamad Ghaddar, is partially accepted.

2. The Respondent, Kelantan Football Association, has to pay to the Claimant the amount of USD 45,000 plus 5 % interest p.a. until the date of effective payment as follows:

a. 5% p.a. as 22 May 2018 on the amount of USD 5,000;

b. 5% p.a. as of 26 May 2018 on the amount of USD 10,000;

c. 5% p.a. as of 26 June 2018 on the amount of USD 5,000;

d. 5% p.a. as of 26 July 2018 on the amount of USD 5,000;

e. 5% p.a. as of 26 August 2018 on the amount of USD 5,000;

f. 5% p.a. as of 26 September 2018 on the amount of USD 5,000;

g. 5% p.a. as of 26 October 2018 on the amount of USD 5,000;

h. 5% p.a. as of 26 November 2018 on the amount of USD 5,000.

3. Any other requests lodged by the Claimant are rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2 above.

5. The Respondent shall provide evidence of payment of the due amount plus interest in accordance with point 2 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due plus interest in accordance with point 2 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 Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is not paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 5 above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

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). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer