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 25 March 2021

Decision of the

Dispute Resolution Chamber

passed on 25 March 2021

regarding an employment-related dispute concerning the player Mohamed Naoucel Khacef

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Daan de Jong (Netherlands), member

Alexandra Gómez Bruinewoud (Uruguay/Netherlands), member

CLAIMANT:

Nasr Athlétique Hussein Dey, Algeria

Represented by Roufila Boulesnam

FIRST RESPONDENT:

Mohamed Naoucel Khacef, Algeria

Represented by Alberto Ruiz de Aguiar Díaz-Obregón

SECOND RESPONDENT:

CD Tondela, Portugal

Represented by Fernando Veiga Gomes

I. FACTS OF THE CASE

1. On 1 July 2016, the Algerian club, Nasr Athlétique Hussein Dey (hereinafter: Claimant or Hussein Dey), and the Algerian player, Mohamed Naoucel Khacef (hereinafter: First Respondent or Player) signed an employment contract (hereinafter: the Contract) valid as from 1 July 2016 until 31 (sic) June 2021.

2. In accordance with the Contract, the Claimant undertook to pay to the First Respondent inter alia the monthly salary of Algerian Dinars (“DZD”) 100,000.

3. Clause 8 of the Contract states the following (free translation from original in French):

“Any disputes or disputes that may arise during the execution of this contract will be resolved amicably between the due parties. Failing that, it will be submitted by one party or the other party to the dispute resolution chamber with the FAF.”

4. On 27 November 2019, the parties signed an amendment to the Contract increasing the Player’s monthly salary to DZD 200,000 (hereinafter: the First Amendment).

5. In addition, the parties agreed on the following terms (free translation from original in French):

“Article 3: The two parties agree that the compensation due to the NAHD in return for the early expiry of this contract is set at DA 28,000,000.”

6. On 30 January 2020, the parties signed another amendment to the Contract extending the employment relationship until 30 June 2022 (hereinafter: the Second Amendment).

7. On 31 January 2020, the Player was temporarily transferred from the Claimant to the French club Girondins de Bordeaux until the end of the season 2020/2021.

8. On 18 August 2020, the Portuguese club CD Tondela (hereinafter: the Second Respondent or Tondela) presented an offer to the Claimant for the acquisition of the Player’s services in the amount of EUR 200,000.

9. On the same date, the Claimant sent a counter-proposal requesting EUR 300,000.

10. On 19 August 2020, the Second Respondent presented a counter-offer in the amount of EUR 200,000 with amended payment terms.

11. On the same date, the Claimant sent a counter-proposal requesting EUR 250,000.

12. On 20 August 2020, the Player’s representative sent a termination letter (hereinafter: the Termination Notice) to the Claimant in the following terms (quoted verbatim):

“I am referring to the employment contract signed with Player Mohamed Naoufel Khacef on July 1, 2016, for a duration of five years.

Currently, the Player, after having completed his loan period with the French Club FC Girondins de Bordeaux, is in Europe, unable to return to Algeria due to the closure of borders for the measures adopted by the existence of the pandemic.

In addition, the competition in Algeria is currently suspended, without there being any possibility of resumption of competition nor guarantees so that the Players can carry out their activity with the minimum conditions of safety and health.

In this situation and taking into account that the Player will not be able to develop his activity as a footballer in Algeria, by means of this communication and on behalf of the Player Mohamed Naoufel Khacef, I inform you the unilateral termination of the employment contract signed with his Club NASR ATHLETIC HUSSEIN DEY on July 1, 2016 with immediate effect and due to the existence of force majeure.“

13. On 1 September 2020, the Player and Tondela signed an employment contract valid until 30 June 2022.

14. Clause 3 of the contract between the Player and Tondela reads inter alia as follows:

“CD Tondela SAD undertakes to pay the Player in return for his activity:

1.1. In the 2020/2021 sports season, the gross annual remuneration of EUR 70,000 (…)

1.2. In the 2021/2022 sports season, the gross annual remuneration of EUR 100,000.00 (…)

15. On 7 September 2020, the Claimant’s legal representative contacted Tondela in order to “regularise” the situation as the player was employed with the Claimant “until 31 June 2021”.

16. On 11 September 2020, the Federação Portuguesa de Futebol requested FIFA’s intervention due to the opposition from the Fedération Algerienne de Football (“FAF”) to issue the Player’s International Transfer Certificate (“ITC”).

17. On the same date, the FAF announced the re-start of the competitions in Algeria.

18. On 22 September 2020, the Single Judge of the Players’ Status Committee passed a decision allowing the provisional registration of the Player with Tondela.

II. PROCEEDINGS BEFORE FIFA

19. On 22 September 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

20. According to the Claimant, the Player was doing well during his loan at Girondins de Bordeuax and was attracting interest from different clubs in different countries.

21. The Claimant further submitted that the Player “and his entourage” were committed to breach the Contract to join Tondela as the Player preferred to remain in Europe, even though he could travel to Algeria notwithstanding the global pandemic situation.

22. The Claimant submits that the argument of force majeure, raised by the player in the Termination Notice, cannot constitute a valid reason to breach a contract without just cause during the protected period. Moreover, it is argued that FIFA approved an amendment to the RSTP due to the unprecedented situation of the Covid-19 pandemic in which FIFA did not declared force majeure as a valid reason to breach a contract. The existence of force majeure has to be evaluated on a case by case basis and considering the laws applicable to each relevant contract.

23. It is further argued that as a general rule, the Contract is bound to the national legislation of the country concerned and that a contract between a professional player and a club can only elapse at the end of the term or by mutual agreement.

24. In the view of the Claimant, as per Art. 18 of the FIFA Regulations on the Status and Transfer of Players (RSTP), FIFA states that a club wishing to sign a player shall inform the current club in writing before entering into negotiation. For this reason, Tondela shall be jointly liable considering that before the termination the Player was according to the Claimant, already training at Tondela’s facilities.

25. The Claimant further argues that the Player’s representative did not invoke any infringement on behalf of the Claimant nor put the Claimant in default. This is according to the Claimant, evidence that the Player and Tondela had “bad faith wishing to breach the contract quickly”.

26. The Claimant understands that the breach of contract is unreasonable and should be rendered null and void as “both respondents did not have just cause to terminate the employment contract”.

27. The Claimant submits that Tondela induced the Player to breach the contract and to use force majeure as a just cause. Moreover, both respondents were aware of the regulations and its consequences and furthermore, “both respondents made a calculation of the risks and accepted the consequences of his/its acts”.

28. Lastly, the Claimant submitted that the breach of contract during the protected period is an aggravating circumstance in clear evidence of the bad faith by the Player and his new club

29. The requests for relief of the Claimant, were the following (free translation from original in French):

a. Condemn the First and the Second Respondent to pay the amount of EUR 300,000 plus interest from 19 August 2020 to the Claimant. Subsidiarily, to pay the amount of EUR 250,000 plus interest from 19 August 2020 to the Claimant.

b. Condemn the Second Respondent to pay the amount of EUR 50,000 plus interest from 19 August 2020 to the Claimant as compensation for the “serious prejudice caused to the Claimant”.

c. The Second Respondent to pay EUR 5,000 for the Claimant’s legal costs.

d. Impose a sporting sanction of 6 months on the First Respondent for breaching the contract during the protected period.

e. Impose a sporting sanction of prohibition of registering players on the Second Respondent for inducing the Player to breach the contract during the protected period.

b. Position of the Player / First Respondent

30. According to the First Respondent, FIFA is not competent to deal with a labour dispute between a club and a player with the same nationality regardless of the joint liability of a third party.

31. The Player states that the situation due to the pandemic in Algeria was extremely bad, to the extent that some players are allegedly crossing the Mediterranean Sea illegally to Spain.

32. The Player further submits that none of the players registered with the Claimant have been receiving their salaries.

33. Moreover, the Player understands that the situation in Algeria jeopardised the Player’s possibilities to develop his career.

34. The Player further submits that “It appears to be clear that the case at stake falls under this specific situation because on one hand the player was unable to get back to Algeria due to the restrictions on movements imposed for the pandemic and secondly, he would have been prevented from carrying out his activity under minimum conditions of safety and health”.

35. For all the above, the Player understood that the Contract was terminated with just cause.

36. Subsidiarily and if the Chamber considers that the Player was not entitled to terminate the Contract, the Player argues that the compensation payable must be limited to the remaining value of the contract.

37. The Player went on to explain that on 1 July 2016, he and the Claimant signed a labour contract, which fixed a monthly salary of DZD 100,000 and the total amount paid by the Claimant until the Termination Notice amounted EUR 31.200.

38. The Player understands that when the contract was terminated, there was only one year left of the initial term agreed because [the Second Amendment], extending the contract to one year more is not valid because according to article 2, paragraph 2, the maximum length of a contract shall be five years.

39. The Claimant further understands that there are no legal grounds to condemn the Player to pay the amount of EUR 300,000 nor EUR 250,000 because such amounts would cause a clear imbalance with the compensation payable by the Club.

40. Subsidiarily, and if the Chamber considers that the compensation payable is not limited to the remaining value of the contract, the Player submits that the compensation payable must be limited to the amount fixed in Clause Third of the First Amendment. According to the mentioned clause, the two parties agreed that the compensation due to the Claimant in return for the early termination of the contract is set at DZD 28,000,000. According to the Claimant, this amount is again an imbalance between the parties.

41. Lastly, the Player submits that he was never induced by Tondela to terminate the Contract. The decision to terminate the contract, was adopted exclusively by the Player in view of the impossibility of returning to his country and in view of the foreseeable impossibility of continuing to play football in Algeria and according to the Claimant, “all the circumstances established in the termination notice, eventually have happened”.

42. The Claimant argued that the contract with Tondela was signed after the termination notice was sent by the Player to Hussein Dey and as per article 17.4 RSTP, sporting sanctions shall be imposed on any club found to be inducing a breach of contract during the protected period. At the time of the termination of the Contract, such contract, signed on June 2016, was not falling under the protected period and therefore sporting sanctions cannot be imposed on Tondela.

43. The requests for relief of the Player were the following:

a. “To issue an award dismissing the claim due to the lack of FIFA competence.

b. Subsidiarily, (if competent) to issue an initial order requiring the Claimant, proof of monthly paid salaries from August to October to other players.

c. Once such order has been sent and fulfilled, to issue and award establishing that the player was entitled to terminate the contract due to force majeure, without any economic consequences or any sporting sanctions on the player.

d. Subsidiarily, if the Chamber considers that the player was no entitled to terminate the contract due to force majeure, to issue and award establishing that the compensation payable must be limited to the remaining value of the player´s contract.

e. Subsidiarily, and if the Chamber considers that the compensation payable is not limited to the remaining value of the contract, to issue and award establishing that the compensation payable must be limited to the amount fixed in CLAUSE THIRD of the annex signed on November 2019.

f. Independent of the type of decision to be issued, the First Respondent requests the DRC to declare that CD Tondela never inducted the player to terminate the previous contract.”

c. Position of Tondela / Second Respondent

44. Tondela filed a reply considering that the Claimant’s claim to be inadmissible. In Tondela’s opinion, the dispute concerns essentially and exclusively an Algerian player and an Algerian club and therefore the dispute does not present any international dimension.

45. According to Tondela, the Contract provides for the exclusive jurisdiction of the “Chambre des Résolutions de Litiges de la FAF” and the FIFA DRC does not have competence or jurisdiction to determine the matter and judge this Claim.

46. It is further submitted by the Second Respondent that when terminating the Contract, the Player invoked force majeure, which is considered just cause for termination of an employment contract. Given that the Player acted with just cause, no compensation whatsoever, and no other related prayers for relief, should be awarded to the Claimant.

47. Tondela submits that it never induced the Player to terminate the Contract with the Claimant and that the Player signed an employment contract with Tondela as a free agent.

48. It further states that if the Chamber considers that the Player was not entitled to terminate the Contract, the compensation payable must be limited to the remaining value of the contract.

49. Tondela argues that the early termination clause or rescission clause included in [the First Amendment] is not reciprocal and would give the power to the Claimant to terminate the contract at any time, and therefore shall be considered as null and void. If such clause is not considered null and void, it shall be reduced because it is not proportional considering the Player’s salary.

50. Lastly, Tondela understand that there shall be no joint liability and the Contract was outside the protected period. For these reasons, sporting sanctions cannot be imposed on Tondela given that if the Contract has been breached, the breach was made outside the protected period.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

51. 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 22 September 2020 and submitted for decision on 25 March 2021. Taking into account the wording of art. 21 of the January 2021 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.

52. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations on the Status and Transfer of Players (edition February 2021), the Dispute Resolution Chamber is competent to deal with the matter at stake, which falls under the scope of art. 22.a) of said Regulations as it is a dispute between an Algerian player, an Algerian club and a Portuguese club in relation to the maintenance of contractual stability (articles 13-18) where there has been an ITC request.

53. Accordingly, the Chamber set aside the argumentation of the First Respondent and the Second Respondent and confirmed that the claim is admissible.

54. To this end, the Chamber recalled that FIFA's jurisdiction in this respect is irrespective of the legitimacy of a national dispute resolution chamber, because an ITC has been issued in the matter at hand. Otherwise, the situation of split jurisdiction would occur, meaning that on the one hand, the provisional registration would be dealt with by FIFA and the substance of the contractual dispute would be dealt with by a national body.

55. 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 Player (edition February 2021), and considering that the present claim was lodged on 22 September 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

56. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

57. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

58. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

i. Main legal discussion and considerations

59. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute on the existence of just cause for the Player to terminate the Contract.

60. In this context, the Chamber acknowledged that it its task was to ascertain as to whether just cause existed and in its absence, if compensation should be paid by any if the parties involved. The Chamber also confirmed that it was its task to assess further consequences of the termination of the contract, should just cause not be present.

61. Based on the foregoing, the Chamber deemed that the arguments raised by the Player in the termination notice refer mainly to the “impossibility of developing his career in Algeria due to the suspension of the competition” and existence of force majeure due to the difficult sanitary situation in the country.

62. The Chamber emphasised that this argumentation cannot be followed, as the Claimant has no influence on the points raised by the Player nor the Player has informed the Claimant of any contractual breach. The DRC found in this respect that accepting this argument would put an unacceptable burden on the Claimant, as the Contract was terminated for circumstances beyond the Claimant’s control or influence.

63. Moreover, it was acknowledged by the members of the Chamber that the Player did not provide any evidence on his impossibility to travel to Algeria in his reply to the claim.

64. In this context, the Chamber firstly wished to highlight that 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 clarifications on the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

65. The DRC also wished to refer to the fact that said guidelines – as per the explicit wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only applicable to “unilateral variations to existing employment agreements”. Therefore, except where a termination of a contract occurred following a unilateral variation made as a result of COVID-19 (in which case the validity of the variation must first be assessed under the guidelines), said guidelines do not apply to assess unilateral terminations of existing employment agreements. The Chamber further noted that for the assessment of disputes that are presented before the FIFA judicial bodies concerning the unilateral termination of a contract, the FIFA Regulations as well as the established jurisprudence of the Chamber shall apply.

66. Analysing the concept of a situation of force majeure, the members of the Chamber noted that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that the COVID-19 outbreak was a force majeure situation in any specific country or territory, or that any specific employment or transfer agreement was impacted by the concept of force majeure. In other words, in any given dispute, it is for a party invoking force majeure to establish the existence of said event under the applicable law/rules as well as the consequences that derive in connection thereto. The analysis of whether a situation of force majeure existed has to be considered on a case by-case basis, taking into account all the relevant circumstances.

67. Nevertheless, in the matter at hand, the Chamber confirmed that the cited Guidelines are not applicable because this document is intended to assist and provide guidance on unilateral alteration of contracts and is not aimed for the termination of contracts, as it the case.

68. Moreover, the Chamber turn to the undisputed fact that the Contract was amended by means of the First Amendment which took place in November 2019 and by the Second Amendment on 30 January 2020.

69. If the argumentation from the Player regarding the invalidity of the extension was to be accepted, it would lead to the outcome that employment relationships between players and clubs could never exceed five years, which is not the case. Moreover, art. 17.3 of the Regulations clearly state that: “The protected period starts again when, while renewing the contract, the duration of the previous contract is extended.”

70. Based on the above, the Chamber concluded that the Player did not have just cause to terminate the contract. What is more, the Chamber confirmed that the breach took place within the protected period.

ii. Consequences

71. 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 Player during the protected period.

72. In continuation, the Chamber turned its attention to art. 17 par. 1 of the Regulations, according to which the Player is liable to pay compensation to Hussein Dey. Furthermore, pursuant to the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the Player’s new club, i.e. Tondela, shall be jointly and severally liable for the payment of compensation. In this respect, the Chamber was eager to point out that the joint liability of the Player’s new club is independent from the question as to whether the new club has committed an inducement to contractual breach or any other kind of involvement by the new club. This conclusion is in line with the jurisprudence of the DRC, which has been repeatedly confirmed by the Court of Arbitration for Sport (“CAS”). Notwithstanding the above, the Chamber recalled that in accordance with art. 17 par. 2 of the Regulations, it should be assumed that, unless otherwise proven, any club that signs a contract with a professional player who has terminated his/her contract without just cause has induced the player to terminate such contract.

73. The members of the Chamber 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 as well as the fees and expenses paid or incurred by the former club and whether the contractual breach falls within a protected period.

74. In application of the relevant provision, the Chamber held that it had to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract.

75. The Chamber then turned to Clause 3 of the First Amendment which stated that the compensation payable to the Claimant in the event of breach of contract by the Player at DZD 28,000,000. However, after careful consideration of the wording of the clause, the Chamber came to the conclusion that the clause is not reciprocal and thus, has to be disregarded by the DRC. The DRC confirmed that such assessment was in line with the longstanding jurisprudence of the Chamber.

76. With the aforementioned considerations in mind, the members of the Chamber wished to recall that when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the Chamber emphasised that the main objective of the FIFA regulations is to create a standard set of rules to which all the actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. This should apply, in particular, also to the termination of a contract. In this respect, the DRC wished to point out that it is in the interest of football that the termination of a contract is based on uniform criteria rather than on provisions of national law that may vary considerable from country to country. Therefore, the Chamber deemed that it is not appropriate to apply the principles of a particular national law to the termination of the contract but rather the Regulations, general principles of law and, where existing, the Chamber’s well-established jurisprudence.

77. As a consequence of the above, the Chamber confirmed that compensation shall be calculated on the basis of art. 17 of the Regulations.

78. In the calculation of the amount of compensation due by the Player, the Chamber firstly turned its attention to the remuneration and other benefits due to the player under the Contract and under the new contract with Tondela, a criterion which 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 any new contract in the calculation of the amount of compensation.

79. According to the documentation provided by the parties, it appears that in accordance with the Contract, the Player was to receive a total remuneration of DZD 4,400,000, equivalent to approximately EUR 27,720 converted at the time of the termination by the Player. This amount includes the remainder of the player’s salaries until June 2022 as per the Second Amendment.

80. On the other hand, the value of the new employment agreement, concluded between the player and Tondela, entitled the former to receive total remuneration of EUR 177,000 for the whole duration of the contract, exclusive of bonuses or benefits for this are conditional payments and hence not considered in the calculation.

81. Hence, the average between the Contract and the new employment contract with Tondela is EUR 102,360.

82. In view of all of the above, the majority of the Chamber concluded that bearing in mind art. 17 par. 1 of the Regulations, after having duly taken into account the specificities of the present case, the aforementioned compensation consisting on the average between the amounts the player is entitled to both under the contract and new employment agreement, does not reflect fairly the circumstances surrounding the case at stake. Therefore, the majority of the members decided that in virtue of art. 17.1 of the Regulations and the application of the principle of specificity of sport, the aforementioned amount should be increased to EUR 160,000, which the majority of the Chamber understood to be a fair, proportionate and reasonable compensation in the case at hand.

83. In sum, the Chamber, by a majority decision, on account of all of the above-mentioned considerations and the specificities of the case at hand, decided that the Player must pay the amount of EUR 160,000 to the Claimant as compensation for breach of contract without just cause within the protected period. Furthermore, Tondela is jointly and severally liable for the payment of the relevant compensation.

84. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Player and Tondela must pay to Hussein Dey interest of 5% p.a. on the amount of compensation as of 22 September 2020 (i.e. date of claim), until the date of effective payment.

iii. Sporting sanctions

85. In continuation, the Chamber focused its attention on the further consequences of the breach of contract in question and, in this respect, it addressed the question of sporting sanctions against the player in accordance with art. 17 par. 3 of the Regulations. The cited provision stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on any player found to be in breach of contract during the protected period.

86. In this respect, the Chamber referred to item 7 of the “Definitions” section of the Regulations, which stipulates, inter alia, that the protected period shall last “for three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”. In this regard, the DRC pointed out that independent of the player’s age, the breach occurred before the contract had run for 2 entire seasons or 2 years, entailing that the unilateral termination of the contract occurred within the protected period.

87. With regard to art. 17 par. 3 of the Regulations, the Chamber emphasised that a suspension of four months on a player’s eligibility to participate in official matches is the minimum sporting sanction that can be imposed for breach of contract during the protected period. This sanction, according to the explicit wording of the relevant provision, can be extended in case of aggravating circumstances. In other words, the Regulations intend to guarantee a restriction on the player’s eligibility of four months as the minimum sanction. Therefore, the relevant provision does not provide for a possibility to the deciding body to reduce the sanction under the fixed minimum duration in case of mitigating circumstances.

88. Consequently, taking into account the circumstances surrounding the present matter, the Chamber decided that, by virtue of art. 17 par. 3 of the Regulations, the Respondent player had to be sanctioned with a restriction of four months on his eligibility to participate in official matches.

89. Finally, the Chamber turned its attention to the question of whether, in view of art. 17 par. 4 of the Regulations, the player’s new club, i.e. Tondela, must be considered to have induced the player to unilaterally terminate his contract with the Claimant without just cause during the protected period, and therefore shall be banned from registering any new players, either nationally or internationally, for two entire and consecutive registration periods.

90. In this respect, the Chamber recalled that, in accordance with art. 17 par. 4 of the Regulations, it shall be presumed, unless established to the contrary, that any club signing a professional player who has terminated his previous contract without just cause has induced that professional to commit a breach. Consequently, the Chamber pointed out that the party that is presumed to have induced the player to commit a breach carries the burden of proof to demonstrate the contrary.

91. In light of the aforementioned and given the circumstances at hand, and in particular the fact that Tondela was negotiating beforehand a transfer of the player, entailing that it was since before the termination of the contract in the players’ services, the DRC had no option other than to conclude that Tondela had not been able to reverse the presumption contained in art. 17 par. 4 of the Regulations and that, accordingly, the latter had induced the player to unilaterally terminate his employment contract with the Claimant.

92. In view of the above, the Chamber decided that in accordance with art. 17 par. 4 of the Regulations, Tondela shall be banned from registering any new players, either nationally or internationally, for the two entire and consecutive registration periods following the notification of the present decision. The club shall be able to register new players, either nationally or internationally, only as of the next registration period following the complete serving of the relevant sporting sanction. In particular, it may not make use of the exception and the provisional measures stipulated in art. 6 par. 1 of the Regulations in order to register players at an earlier stage.

93. In accordance with the Circular no. 1686 of 8 August 2019, art. 24bis of the Regulations does not apply to decisions whereby sporting sanctions (registration ban or restriction to play in official matches) are imposed on the basis of art. 17 of the Regulations, the execution of which will still continue to be carried out by the Disciplinary Committee.

94. Hence, the members of the Chamber decided that the Player shall be banned from playing in official matches for a period of four-months and Tondela shall be banned from registering new players, either nationally or internationally, for two entire and consecutive registration periods.

d. Costs

95. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

96. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

97. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Nasr Athlétique Hussein Dey, is admissible.

2. The claim of the Claimant is partially accepted.

3. The First Respondent, Mohamed Naoucel Khacef, has to pay to the Claimant, within 30 days as from the date of notification of this decision, EUR 160,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 22 September 2020 until the date of effective payment.

4. The Second Respondent, CD Tondela, is jointly and severally liable for the payment of the compensation mentioned under point 3 above.

5. Any further claims of the Claimant are rejected.

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

7. The First Respondent and the Second 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).

8. If the aforementioned sum plus interest is not paid within the above-mentioned time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision.

9. A restriction of four months on his eligibility to play in official matches is imposed on the First Respondent. This sanction applies with immediate effect as of the date of notification of the present decision. The sporting sanctions shall remain suspended in the period between the last official match of the season and the first official match of the next season, in both cases including national cups and international championships for clubs.

10. The Second Respondent shall be banned from registering any new players, either nationally or internationally, for the two next entire and consecutive registration periods following the notification of the present decision.

11. This decision is rendered without costs.

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:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777