FIFA - Decisión disputa Koulkheir 02082023

REF. FPSD-10587

Decision of the Dispute Resolution Chamber passed on 2 August 2023 regarding an employment-related dispute concerning the player Younes Koulkheir BY: Khalid Awad Al-Thebity (Saudi Arabia) Single Judge of the Dispute Resolution Chamber

CLAIMANT:

Younes Koulkheir, Algeria Represented by Mr Slim Boulasnem

RESPONDENT:

Al-Tahaddy Benghazi, Libya pg. 2

REF. FPSD-10587

I. Facts of the case

1. On 20 January 2023, the Algerian player Younes Koulkheir (hereinafter: Claimant or player) and the Libyan club Al-Tahaddy Benghazi (hereinafter: club or Respondent) concluded an employment contract (hereinafter: the Contract) valid as from the date of signature until 30 June 2023.

2. In accordance with the Contract, the Respondent undertook to pay the Claimant an advance payment of USD 10,000, and five monthly salary instalments of USD 2,000, resulting in a total remuneration of USD 20,000. Furthermore, the Respondent undertook to provide the Claimant with a “flight ticket and accommodation”.

3. On 13 March 2023, the Claimant and a representative of the Respondent exchanged several messages on WhatsApp, in which the Claimant informed the Respondent that he was tending to an emergency, of which he tried to inform club representatives to no avail.

The Claimant requested the Respondent to provide him with a flight ticket to return in order to resume his activity. The Respondent, on the other hand, refused to grant a flight ticket, and stated through its representative that ”hopefully” club management can agree on a reimbursement.

4. On 25 April 2023, the Claimant put the Respondent in default and requested payment of USD 4,666, corresponding to the pro-rata remaining salary of January and as well as the

full salaries for February 2023 and March 2023. A 10 day deadline was granted.

5. On 2 June 2023, the Claimant unilaterally terminated the Contract.

II. Proceedings before FIFA

6. On 15 June 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

7. In his claim, the player argued that he had just cause to terminate the Contract due to overdue payables.

8. The Claimant stated that he put the Respondent in default of an amount exceeding two salaries, and granted a deadline of 10 days, but terminated far more than 15 days after such default notice was notified.

9. According to the Claimant, more than four monthly salaries remained unpaid at the time of termination. pg. 3

REF. FPSD-10587

10. The Claimant also outlined that he had requested a flight ticket to return from an emergency, which had deliberately not been provided by the Respondent.

11. The Claimant requested USD 8,666 as outstanding remuneration and USD 2,000 as compensation, as well as interest as from the respective due dates until the dates of effective payment.

b. Position of the Respondent

12. In its reply, the Respondent outlined that the Claimant allegedly left without the club’s authorisation, and that he was contacted in vain by the club on several occasions to return.

13. The Respondent equally alleged that it had paid the advance of USD 10,000, which should be seen as a token of good faith, and that it had put the Claimant in a good hotel.

14. The Respondent also pointed out that it allegedly contacted the Libyan Football Federation about his absence and that they request the latter to take action in this regard.

15. Lastly, the Respondent submitted an alleged statement from the Claimant’s agency, in which it is stated that they have terminated contractual relations with him due to the

“unprofessional and dishonourable behaviour” exhibited in Libya.

16. Therefore, the Respondent requested for the claim to be rejected. pg. 4

REF. FPSD-10587

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 15 June 2023 and submitted for decision on 2 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.

18. Subsequently, the Single Judge 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), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from Algeria and a club from Libya.

19. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he 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 15 June 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

20. The Single Judge 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 Single Judge 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

21. Its competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, he started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand. pg. 5

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1. Main legal discussion and considerations

22. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that the parties strongly dispute the lawfulness of the contractual termination by the Claimant.

23. In this context, the Single Judge acknowledged that his task was to determine whether, based on the evidence on file, the Respondent had indeed – and without any valid justification – failed to comply with the financial terms of the Contract, and subsequently whether the Claimant had just cause to terminate the Contract prematurely.

24. Prior to entering said analysis, the Single Judge revisited the arguments of the parties, starting with the Claimant, who argued that he terminated the Contract with just cause due to outstanding remuneration. The Claimant had described not having received his remuneration from the beginning of the Contract, with the exception of the advance of USD 10,000. Furthermore, the Claimant had provided written evidence of having put the Respondent in default on 25 April 2023, i.e. at least 15 days before unilaterally terminating the contract on 2 June 2023.

25. On the other hand, the Single Judge took note of the Respondent’s allegation that the Claimant was absent without authorisation, and that, as a result, and based on the principle of exceptio non adimpleti contractus, it had the right to withhold payment of the Claimant’s salaries. The Respondent equally purported that it had attempted – in vain – to contact the Claimant to convince him to return.

26. Having recalled the above, the Single Judge moved on to evaluate the parties’ submissions, and wished to highlight that, in the case at hand, the Respondent bore the burden of proving that it had a valid justification for defaulting on the payments – with the nonpayment thereof being uncontested.

27. In this respect, the Single Judge wished to emphasise that the argumentation used by the Respondent that the Claimant was absent without authorisation was not corroborated with adequate evidence. On the contrary, in the Single Judge’s estimation, the WhatsApp conversation submitted to the file suggests that the Respondent was aware of the Claimant’s absence, and refused to provide him with a return flight ticket, despite being obligated to do so via the Contract.

28. Furthermore, the Respondent provided no evidence whatsoever of having unsuccessfully attempted to contact the Claimant. Said lack of engagement by the former which was perceived by the Single Judge further undermined the argumentation that the Claimant was absent without authorisation – had this been the case, the Single Judge considered, the Respondent should have proactively sought out the Claimant, which could presently not be demonstrated based on the evidence on file. pg. 6

REF. FPSD-10587

29. Lastly, considering the affidavit from the Claimant’s alleged agency, the Single Judge deemed that it was impossible to ascertain whether or not the Claimant was truly represented by said agency, as the statement was provided entirely out of context and without a corresponding representation agreement, and that, in any event, the Claimant’s purported contractual relationship with his agency bore no effective influence on the

employment relationship with the former and the Respondent.

30. In light of the above, the Single Judge held that the non-payment of the outstanding amount of four monthly salaries was not justified by the Respondent.

31. The Single Judge also wished to point out, with particular reference to the submission that the Respondent had paid the advance of USD 10,000 and that the Claimant had been lodged in a “good hotel”, that this was not seen as a “token of good faith”, but that the former was simply complying with its obligations of the Contract.

32. Therefore, with more than two monthly salaries outstanding and a deadline of 15 days being granted by the Claimant, the latter was held by the Single Judge to have had just cause to terminate the Contract unilaterally on 2 June 2023. ii. Consequences

33. Having stated the above, the Single Judge turned his attention to the question of the consequences of such unjustified breach of contract committed by the Respondent.

34. The Single Judge observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to four salaries under the Contract, amounting to USD 8,000. In this respect, the Single Judge wished to emphasise that the Contract stipulated a total value of USD 20,000, with USD 10,000 as an advance payment and five instalments of USD 2,000 each until the end of the Contract – 30 June 2023. By way of consequence, no amount was due in January 2023, and the outstanding remuneration corresponded to the unpaid salaries between February 2023 and May 2023.

35. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Single Judge 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 8,000 (i.e. USD 2,000 times four).

36. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the following dates: - On the amount of USD 2,000, as from 1 March 2023 until the date of effective payment; pg. 7

REF. FPSD-10587 - On the amount of USD 2,000, as from 1 April 2023 until the date of effective payment; - On the amount of USD 2,000, as from 1 May 2023 until the date of effective payment; - On the amount of USD 2,000, as from 1 June 2023 until the date of effective payment.

37. Having stated the above, the Single Judge 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 Single Judge 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.

38. In application of the relevant provision, the Single Judge held that he 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 Single Judge established that no such compensation clause was included in the employment contract at

the basis of the matter at stake.

39. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

40. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 former concluded that the amount of USD 2,000 (i.e. the residual value, or the last month under the Contract – June 2023) serves as the basis for the determination of the amount of compensation for breach of contract.

41. In continuation, the Single Judge 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. As the player had not found employment in the pg. 8

REF. FPSD-10587 overlapping period between the date of termination and the original date of expiry of the Contract, he was held not to have mitigated his damages.

42. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the club must pay the amount of USD 2,000 to the player (i.e. the residual value of the Contract), which was to be considered a reasonable and justified amount of compensation for breach of contract in

the present matter.

43. Lastly, taking into consideration the player’s request as well as the constant practice of the Single Judge in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of 2 June 2023 until the date of effective payment. iii. Compliance with monetary decisions

44. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24 par. 1 and 2 of the Regulations, which stipulate that, with his 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.

45. In this regard, the Single Judge 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.

46. Therefore, bearing in mind the above, the Single Judge 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.

47. 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.

48. The Single 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. 24 par.

8 of the Regulations. pg. 9

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d. Costs

49. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the parties.

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

51. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 10

REF. FPSD-10587

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Younes Koulkheir, is partially accepted.

2. The Respondent, Al-Tahaddy Benghazi, must pay to the Claimant the following amount(s): - USD 8,000 as outstanding remuneration plus interest p.a. as follows: - 5% interest p.a. over the amount of USD 2,000 as from 1 March 2023 until the date of effective payment; - 5% interest p.a. over the amount of USD 2,000 as from 1 April 2023 until the date of effective payment; - 5% interest p.a. over the amount of USD 2,000 as from 1 May 2023 until the date of effective payment; - 5% interest p.a. over the amount of USD 2,000 as from 1 June 2023 until the date of effective payment. - USD 2,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 2 June 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. pg. 11

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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. 12

REF. FPSD-10587

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. 13