FIFA - Decisión disputa Kadiri 17082023

REF. FPSD-10048

Decision of the Dispute Resolution Chamber passed on 17 August 2023 regarding an employment-related dispute concerning the player Mohammed Abdul Kadiri

COMPOSITION:

Frans de Weger (the Netherlands), Chairperson Tomislav Kasalo (Croatia), member Dana Mohamed Al-Noaimi (Qatar), member

CLAIMANT:

Mohammed Abdul Kadiri, Ghana Represented by Nir Inbar

RESPONDENT:

FC ISTIKLOL, Tajikistan pg. 2

REF. FPSD-10048

I. Facts of the case

1. On 17 February 2023, the player from Ghana, Mohammed Abdul Kadiri (hereinafter: Claimant or player) and the club from Tajikistan, FC ISTIKLOL (hereinafter: club or Respondent) concluded an employment contract (hereinafter: contract) valid as from 17

February 2023 until 1 June 2024.

2. According to the clause 5.1. of the contract, the Respondent undertook to pay the Claimant a monthly salary of TJS (Tajikistani Somoni) 126,000.

3. Clause 7.4 of the contract, stipulates: “This contract comes into full force after a medical examination in Tajikistan within two days after camp in Turkey and will be issued as a separate protocol in this contract with a report on the conclusion of doctors, in case of unhealed injuries or any illnesses that prevent the player from playing football, this contract is cancelled.”

4. On 16 February 2023, the Claimant started official training and played friendly matches for the Respondent.

5. Allegedly, the Respondent, requested that the Claimant accept a permanent reduction of his monthly which he refused, whereafter the Respondent requested the Claimant to undergo an additional general medical examination in the local hospital.

6. The Claimant stated that, “after conducting these additional medical examinations, in bad

faith, the Respondent informed the Player that he allegedly suffered from "heart problems", and that consequently as from 13 March 2023 he could no longer be a part of the Respondent.”

7. On 13 March 2023, the Respondent terminated the contract.

8. On 22 March 2023 the Claimant sent a notice to the Respondent, “demanding that the Respondent shall compensate him in the amount of Somoni 2,016,000 at 5% interest p.a as from 13 March 2023 until the date of effective payment, due to an early and unilateral termination of the Contract without just cause during the protected period.”

9. On 5 April 2023 the Respondent responded, alleging that the Claimant was diagnosed with "serious health problems in the work of the heart" and consequently alleged that according to clause 7.4 of the Contract the Respondent "has the right to cancel the Contract with a player who has not passed a medical examination and has contraindications to playing football".

10. The player confirmed that he has remained unemployed. pg. 3

REF. FPSD-10048

II. Proceedings before FIFA

11. On 27 April 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

12. According to the Claimant, (i) he successfully passed all medical examinations conducted by the Respondent before signing the contract; (ii) upon failing to convince him to reduce his monthly salaries and with no medical trigger or event giving rise to a heart diagnosis, the Respondent requested him to undergo additional general examinations in the local hospital, allegedly according to which it came to the bad faith conclusion that he suffers from an alleged heart impediment and (iii) this alleged impediment was nothing but a mere excuse for a breach of contract without just cause.

13. The requests for relief of the Claimant, were that the Respondent pay him, the total amount of TJS 2,016,000 net as compensation, plus 5% interest p.a. as from 13 March 2023 until the

date of effective payment and that the FIFA DRC shall impose sportive sanctions on the Respondent. b. Position of the Respondent

14. In its reply, the Respondent indicated that the contract was signed with the Claimant “with the inclusion of Special Conditions (section 7 of the Contract) in terms of the fact that it comes into force and becomes binding on the parties only after the successful completion of the medical examination in the Republic of Tajikistan.”

15. On 1 March 2023, “the Respondent returned to Tajikistan and according to the terms of the contract on March 03, 2023, the player was sent for a medical examination to the Republican Clinical Center of Cardiology in Dushanbe, which is confirmed by the examination protocol of a qualified cardiologist dated 03.03.2023.”

16. According to the Respondent, based on the aforesaid results of the medical examination, “the Claimant was diagnosed with heart problems that prevented him from playing professional sport and therefore in the period from March 11 2023 to March 13, 2023, by the decision of the Club, the Player underwent a second medical examination, with additional examinations by a cardiologist who confirmed the diagnosis made earlier.”

17. On 11 March 2023, the Claimant underwent another examination and based on the results of the examination the Claimant was diagnosed with Sports heart.

18. The Respondent indicated that as the Claimant was diagnosed problems linked to his heart which prevent him from participating in professional sports, it decided to cancel the pg. 4

REF. FPSD-10048 contract concluded with the Claimant based on clause 7 of the contract. In this context, the Respondent indicated that the contract has not finally entered into legal force and has not become binding on the parties.

19. The Respondent further mentioned that the Claimant, “was aware of his health problems that impede professional sports and did not report them to the Club when signing the contract, which can only indicate the Player's dishonesty and desire to mislead the Club. The Player's

actions are knowingly unfair, they show signs of a fraudulent scheme aimed at unjust enrichment of the Player at the expense of the Club without appropriate legal grounds.”

20. In conclusion, the Respondent requested the following relief:

(a) “FIFA DRC dismisses the Claimant's claims against the Respondent in full. (b) FIFA DRC confirms the cancellation of the contract by the Respondent to the Plaintiff for good cause. (c) FIFA DRC does not impose sports sanctions on the Respondent.” pg. 5

REF. FPSD-10048

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

21. 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 27 April 2023 and submitted for decision on 17 August 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.

22. 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 May 2023 edition), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from Ghana and a club from Tajikistan.

23. 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 (May 2023 edition), and

considering that the present claim was lodged on 27 April 2023, the March 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

24. 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

25. 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 above-mentioned 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-10048

1. Main legal discussion and considerations

26. The foregoing having been established, the Chamber moved to the substance of the matter and took note of the fact that the Claimant claims that the Respondent had prematurely terminated the contract without just cause.

27. In this context, the Chamber acknowledged that its task was to determine, based on the evidence presented by the parties, whether the Respondent had a valid justification for terminating the contract.

28. In this respect, the Chamber noted that the Respondent argued that it was entitled to terminate the contract on the basis of clause 7.4 of the contract, which stipulates that, “this contract comes into full force after a medical examination in Tajikistan within two days after

camp in Turkey and will be issued as a separate protocol in this contract with a report on the conclusion of doctors, in case of unhealed injuries or any illnesses that prevent the player from playing football, this contract is cancelled.”

29. In this context, the Chamber made reference to the clear and explicit wording of art. 18 par. 4 of the Regulations, according to which, inter alia, the validity of an employment contract cannot be made subject to a successful medical examination. Referring also to the obligation of the parties to maintain contractual stability, the Chamber underlined that a club willing to engage a specific player should perform any medical examination prior to concluding any employment contract with the player. Any contractual provision contrary to art. 18 par. 4 of the Regulations shall be considered as invalid.

30. Based on the foregoing, the Chamber concluded that the Respondent terminated the contract without just cause and that the Respondent is to be held liable for the consequences thereof. ii. Consequences

31. 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

Respondent.

32. The Chamber noted that the parties differed on the exact date of termination of the contract, in that the Claimant indicated that the contract was terminated on 13 March 2023 and the Respondent indicated that the contract was terminated as of 3 April 2023, in this regard the Chamber took into account the date of 13 March 2023, as the date of termination as the Respondent confirmed that the Claimant was at its disposal until the said date. pg. 7

REF. FPSD-10048

33. The Chamber further noted that the Respondent indicated that it paid the Claimant an amount of TJS 113,568. In this regard the Chamber took into account the signed payment sheet the Respondent submitted in support of its allegation and that the signature thereof was not denied by the Claimant, the Chamber therefore decided to deduct the said amount

from any awarded compensation.

34. 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.

35. 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.

36. 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 non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

37. 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 TJS 1,944,000 (i.e. pro rata February 2023 at TJS 54,000 and

TJS 126,000 x 15 months) serves as the basis for the determination of the amount of compensation for breach of contract.

38. In continuation, the Chamber verified as to whether the player 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 as well as art. 17 par. 1 lit. ii) of the Regulations, 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. pg. 8

REF. FPSD-10048

39. In this respect, the player confirmed that he had remained unemployed.

40. Subsequently, the Chamber confirmed that as the contract termination did not take place due to overdue payables by the club, the player shall not be entitled to receive additional compensation.

41. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of TJS 1,830,432 net as to the player (i.e. TJS 1,944,000 minus TJS 113,568), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

42. 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 13 March 2023 until the date of effective payment. iii. Compliance with monetary decisions

43. 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.

44. 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.

45. 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.

46. 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-10048

47. 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

48. 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.

49. 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.

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

REF. FPSD-10048

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Mohammed Abdul Kadiri, is partially accepted.

2. The Respondent, FC ISTIKLOL, must pay to the Claimant the following amount(s): - TJS 1,830,432 net as compensation for breach of contract without just cause plus 5% interest p.a. as from 13 March 2023 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. 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 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.

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

7. This decision is rendered without costs.

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

REF. FPSD-10048

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