FIFA - Decisión disputa Hooi 08062023

REF. FPSD-8821

Decision of the Dispute Resolution Chamber passed on 8 June 2023 regarding an employment-related dispute concerning the player Elson Quincy Hooi

COMPOSITION: Clifford J. Hendel (USA & France), Chairperson Alexandra Gómez Bruinewoud (the Netherlands) , member

Khalid Awad Al-Thebity (Saudi Arabia), member

CLAIMANT/ COUNTER-RESPONDENT:

Menaa FC , Iraq Represented by Mouhamed Ammar Mouhamed

RESPONDENT/COUNTER-CLAIMANT:

Elson Quincy Hooi, Netherlands Represented by Kosmas Mitsios pg. 2

REF. FPSD-8821

I. Facts of the case

1. On 9 August 2022, the Iraqi club, Menaa FC (hereinafter: Claimant/Counter-Respondent or the club) and the Dutch player Elson Quincy Hooi (hereinafter: Respondent/Counter-Claimant or player) concluded an employment contract (hereinafter: contract) valid as from 1 September 2022 until 30

June 2023.

2. According to the contract, the club undertook to pay to the player the following remuneration: “the value of the contract is (50,000) fifty thousand dollars after passing, the medical and physical test, and the remaining (40,000) fifty thousand dollars are distributed in the form of monthly salaries due on 1/11/20222 for each month (5000) five thousand dollars.”

3. Article 8 of the contract stipulates the following: “in the event that the second party desires to abandon work with the first party, he is obligated to return 100% of all that he received from the first party.”

4. On an unspecified date, the player left for his country in accordance with leave approved by the club for the period between 24 December 2022 until 2 January 2023.

5. On 2 January 2023, allegedly, the player’s agent contacted the club, informing it “that he would not

return to the club again unless the amount of $12,000 was paid for the months of December 2022 and January 2023.”

6. On 4 January 2023, the club sent a correspondence to the player, inter alia, informing him, that “in the event that you do not return to the club within three days, the club is obliged to file a complaint against you in FIFA”.

7. On 5 January 2023, the player replied and informed the club “he will not return until he receives $12,000 before the seventeenth of January 2023.”

8. According to the information contained in the Transfer Matching System (TMS), the player remained unemployed.

II. Proceedings before FIFA

9. On 9 January 2023, the club filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the club

10. According to the club, the player failed to return to the club, moreover, given that he failed to return his salary is considered suspended. pg. 3

REF. FPSD-8821

11. Furthermore, the club indicated that according to article 8 of the contract signed between the player and the club, the player is obligated to refund all the amounts he received from the club.

12. The requests for relief of the club, were the following: “I ask that the player be obligated to pay the full value of the contract, which is fifty thousand dollars, in addition to paying a financial compensation of two hundred thousand US dollars, in addition to the price of the tickets that the club paid him for his escape before completing the implementation of the terms of the contract and for breaking the contract unilaterally.”

b. Position and counterclaim of the player

13. In its reply, the player denied that he received all his financial dues from the club according to the attached receipts. The player indicated that “such allegation is clearly erroneous as the outstanding salaries amounted to USD 12.000, which correspond partially to the monthly salary payable by no later

than 1 November 2022 (USD 2.000), to the monthly salary payable by no later than 1 December 2022 (USD 5.000) and to the monthly salary payable by no later than 1 January 2023 (USD 5.000). Moreover, the Club on one hand attaches a so-called receipt in Arabic (untranslated), its content; thus, such exhibit shall be clearly considered inadmissible.”

14. Moreover, the player mentioned that ”they attach an undated document signed by the player which only stipulates that he received the amount of USD 8,000 for the salary corresponding to October and November 2022. To sum up, the Club did never challenge that the outstanding salaries amount to USD 12.000 as to the two notification letters serviced on behalf of the player remained unanswered.”

15. Furthermore, the player argued that he did not refuse to return to the club as he made it clear that he will withhold his labour until the club complied with its contractual obligations.

16. The player indicated that he terminated the contract with just cause under Art.14bis RSTP.

17. On 2 January 2023, the player sent a notice to the club requesting payment of the amount of USD 12,000, granting it a deadline of 15 days’, however to no avail.

18. Additionally, the player in the aforesaid letter highlighted the following: “In the light of the above, according to the principle of exception non adimpleti contractus, the Player will avail of his right to withhold his performance under the contract until the outstanding salary if fully paid. Therefore, the Player will return to Iraq and join the Club after the latter fulfilled its payment obligations.”

19. On 5 January 2023, the player sent a second default notice to the club, reiterating his request for non-payment of his outstanding remuneration of USD 12,000. pg. 4

REF. FPSD-8821

20. On 18 January 2023, the player sent a termination notice to the club, reiterating his request for nonpayment of his outstanding remuneration of USD 12,000.

21. In conclusion the player requested the following relief: “(ii) Reject entirely the Claim of Al Minaa SC

(iii) Adjudge that Mr. Elson Hooi terminated unilaterally the Employment Contract with just cause under FIFA Regulations (iv) Order Al Minaa SC to proceed to the effective payment of the outstanding salaries to Mr. Elson Hooi which amount to USD 12.000,00 (Twelve Thousand US Dollars) (v) Order Al Minaa SC to compensate Mr. Elson Hooi with the total amount of USD 25.000,00 due to the premature termination of the Employment Contract (vi) Determine that an interest rate of 5% per annum shall apply over the outstanding salaries and the compensation in accordance with the supra submission VI.E (vii) Impose the applicable sporting sanctions against Al Minaa SC (viii) Order the Club to bear any and all legal costs as to the present dispute.” c. Reply to the counterclaim

22. In its reply to the counterclaim, the club mentioned the following: “We assure you that the Iraqi Mina Club has made all friendly efforts to complete the contract with the Dutch player ELSON QUINCY HOOI and that the Mina Club has dealt with the player with the highest noble values, as he booked tickets for him to spend the Christmas and New Year holidays, but this player does not respect his contractual obligations and dealt with the club in bad faith FIFA must deter this player so that he does not set an example for other players who tempt themselves to break contractual clauses simply by claiming lies.

And we assure you that the Dutch player ELSON QUINCY HOOI does not deserve any amount that he mentioned in all the documents submitted in this case We also assure you that the Dutch player has escaped from the implementation of the contract and that he had bad intentions towards the Iraqi Mina Club We confirm all the documents we have previously presented to you in this case

We also ask FIFA to reject all claims made by the Dutch player ELSON QUINCY HOOI, as they are false and untrue” pg. 5

REF. FPSD-8821

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

23. 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 9 January 2023 and submitted for decision on 8 June

2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

24. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (March 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a club from Iraq and a player from the Netherlands.

25. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (March 2023 edition), and considering that the present claim was lodged on 09 January 2023, the October 2022 edition of said regulations

(hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

26. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System

(TMS). c. Merits of the dispute

27. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. 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. pg. 6

REF. FPSD-8821

1. Main legal discussion and considerations

28. The foregoing having been established, the Chamber moved to the substance of the matter, and noted that the case at hand pertains to a claim for compensation for breach of contract of the club against the player and a counterclaim of the player for outstanding remuneration and compensation for breach of contract following the termination notice he sent to the club on 18 January 2023.

29. In this context, the Chamber took note that the club argued that the player failed to return to the club after his leave period ended on 2 January 2023, therefore it considered his salary to be suspended and that according to article 8 of the contract, the player is obligated to refund all the amounts he received from the club.

30. The DRC observed that the player asserted that the club had not fulfilled its contractual obligations towards him, hence he had just cause to terminate the contract, specifically claiming in his default notice to the club of 2 January 2023, that he did not receive his remuneration in the total amount of

USD 12,000. Additionally, that he informed the club that he will withhold his labour until it complied with its contractual financial obligations.

31. Having analysed the foregoing elements, the members of the Chamber noted that from the information on file, it could be established that the player indeed sent his default notice for outstanding salaries to the club prior to the lodgement of the latter’s claim at FIFA on 9 January 2023.

32. The DRC mentioned that though the player had confirmed that he withheld his labour from the club due to the non-compliance of the latter of its contractual financial obligations, the conduct of the club i.e., failing to pay his salaries for a period of over two months, indeed established a breach of contract on the latter’s part.

33. In this context, the Chamber noted that the player claims not having fully received his remuneration for November 2022 in the amount of USD 2,000, December 2022 in the amount of USD 5,000 and January 2022 in the amount of USD 5,000. Furthermore, that the player has provided written evidence of having put the club in default at least 15 days before unilaterally terminating the contract on 18 January 2023.

34. The members of the Chamber noted that the club in its reply to the counterclaim of the player contested the amounts which are claimed by the player, however failed to provide conclusive documentary evidence, on the basis of which it could be established that the club complied with its financial obligations as per the contract or that it paid the amounts claimed as outstanding by the player.

35. Thus, the DRC concluded that the player had a just cause to unilaterally terminate the contract, based on art. 14bis on 18 January 2023 and that the argument of the club cannot be upheld. pg. 7

REF. FPSD-8821

36. Taking the above into account, the Chamber further concluded that the club is not entitled to receive any compensation for breach of contract from the player, and accordingly its claim is rejected.

1. Consequences

37. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the club.

38. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to USD 12,000.

39. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e., USD 12,000 plus 5% p.a. on the outstanding amounts as from the respective due dates until the date of effective payment as follows: - On the amount of USD 2,000 as from 1 December 2022 - On the amount of USD 5,000 as from 1 January 2023 - On the amount of USD 5,000 as from 1 February 2023

40. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

41. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the

event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

42. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. pg. 8

REF. FPSD-8821

43. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract from the date of its unilateral termination until its end date. Consequently, the Chamber concluded that the amount of USD 25,000 (i.e., February 2023 until June 2023 at a monthly salary of USD 5,000 per month) serves as the basis for the determination of the amount of compensation for breach of contract.

44. In this respect, the Chamber noted that the player remained unemployed since the unilateral termination of the contract.

45. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

46. In this respect, the Chamber decided to award the player compensation for breach of contract in the amount of USD 25,000, i.e., USD 5,000 times 5, as the residual value of the contract.

47. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of 18 January 2023 until the date of effective payment.

1. Compliance with monetary decisions

48. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

49. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid. The overall maximum duration of the registration ban shall be of up to three entire and consecutive registration periods.

50. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

51. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision. pg. 9

REF. FPSD-8821

52. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the Regulations.

d. Costs

53. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”.

Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

54. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be awarded in these proceedings.

55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 10

REF. FPSD-8821

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/Counter-Respondent, Menaa FC, is rejected.

2. The claim of the Respondent/Counter-Claimant, Elson Quincy Hooi, is partially accepted.

3. The Claimant/Counter-Respondent, Menaa FC , must pay to the Respondent/Counter-Claimant, the

following amount(s): (a) USD 12,000 as outstanding remuneration plus 5% interest p.a. as from the respective due dates until the date of effective payment, as follows: - On the amount of USD 2,000 as from 2 November 2022 - On the amount of USD 5,000 as from 2 December 2023 - On the amount of USD 5,000 as from 2 January 2023 (b) USD 25,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 18 January 2023 until the date of effective payment.

4. Any further claims of the Respondent/Counter-Claimant are rejected.

5. Full payment (including all applicable interest) shall be made to the bank account indicated in the

enclosed Bank Account Registration Form.

6. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment (including all applicable interest) is not made within 45 days of notification of this decision, the following

consequences shall apply:

1. The Claimant/Counter-Respondent shall be banned from registering any new players, either

nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall be of up to three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.

7. The consequences shall only be enforced at the request of the Respondent/Counter-Claimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of

Players.

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 11

REF. FPSD-8821

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION: FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football Tribunal).

CONTACT INFORMATION

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 pg. 12