FIFA - Decisión disputa Magherbi 21062023

REF. FPSD-9276

Decision of the Dispute Resolution Chamber passed on 21 June 2023 regarding an employment-related dispute concerning the player Taler Magherbi BY: Michele COLUCCI (Italy)

CLAIMANT:

Taler Magherbi, Tunisia Represented by Mr Slim Boulasnem

RESPONDENT:

Al Helal Sporting, Libya pg. 2

REF. FPSD-9276

I. Facts of the case

1. On 20 September 2022, the Tunisian player, Taler Magherbi, and the Libyan club, Al Helal Sporting, concluded an employment contract on valid as from the date of signature until 15 August 2023 according to which the player was entitled to receive the total remuneration 150,000 Libyan Dinars (LYD) payable as follows (Art 4): - LYD 50,000 upon signature according to Art 4.2.a of the contract. - LYD 9,550 as monthly salary for the duration of the contract according to article

4.2.b.

2. According to the player “a verbal agreement between the parties provided that the player was entitled to 800 Libyan Dinars as pocket money each month.”

3. On 7 December 2022, the club sent a mail to the player indicating that his salary would be reduced by 50% due to his performance.

4. On 9 December 2022, the player sent a default notice to the club, requesting the following: - To pay the sum of 28,650 Libyan Dinars corresponding to the salaries of September 2022, October 2022 and November 2022 within 15 days. - That the clubs returns his passport within 72 hours. - To be provided with a copy of his contract within 72 hours.

5. On 22 December 2022, the club sent a letter to the player, with inter alia, the following contents: “The player received the monthly salaries from September 20, 2022 until March 15, 2023,

in advance of an amount of $10,000, equivalent to 54,200 Libyan dinars, at a monthly salary of 9,550 Libyan dinars per month. (…) The player's passport was with the club's administration to complete administrative procedures, and when the player requested it, it was handed over to him (…) We also confirm that the player has a contract with the club”

6. On 3 January 2023, the player sent a new letter noting that amounts for the months of September, October, November, and December 2022, for a total of LYD 38,500, remained outstanding. The player requested that the amount be paid in full within the next 15 days.

The player also mentioned that the club was holding his passport from the start of the employment relationship.

7. On 18 January 2023, the club respondent and denied the accusation that they were holding the player's passport. The club claimed to have sent documents indicating pg. 3

REF. FPSD-9276 that the player's salary had been received in advance until 15 March 2023, as specified in the contract. The club accused the player of violating the contract by leaving the country without approval and requested that the player return to training within 72 hours or face penalties.

8. On 19 January 2023, the player sent a termination notice with the following contents: “Regarding the player’s administrative situation. You did confiscate the player’s passport and returned it only after we had referred the matter to FIFA. In our last notice, we invited you to regularize the player’s administrative situation, not to return his passport. Yet, you decided to ignore this request.

You also decided to ignore our clear requests to end the various contractual breaches. To date, you failed to remunerate the player for several months, failed to regularize the player’s administrative situation in Libya to allow him to work and reside lawfully in a foreign country and expelled him from the professional team without any reason. We therefore take note that your club has no intention to honor its obligations towards

the player and is therefore not interested any longer in retaining his services. Consequently, we wish to inform you that Mr Talel Maghreb herewith formally terminates his employment contract with just cause with immediate effect in accordance with article 12,12 Bis, 14 and 14 bis of the FIFA RSTP.”

9. The player concluded an employment contract with the Tunisian club, Avenir Sportif Oued Ellil, valid as from 27 January 2023 until 30 June 2023, for a monthly salary of

400 “points”.

10. According to said contract, each point corresponds to 3 times the hourly minimum wage (SMIG, Salaire Minimum Interprofessionnel Garanti). Following the Tunisian Decree 2022-769 of 19 October 2022, the minimum SMIG is TND (Tunisian Dinars) TND 2.25 per hour. Therefore, the player’s monthly salary would be 2.25400 = TND 900, equivalent to approx. EUR 272. Therefore, it can be estimated that, from February 2023 until June 2023, the player would earn TND 9005 = TND 4,500, equivalent to approx. LYD 7,000 or EUR 1,360). pg. 4

REF. FPSD-9276

II. Proceedings before FIFA

11. On 14 February 2023, the player lodged a claim before the FIFA Football Tribunal for outstanding remuneration and breach of contract without just cause and requested

the payment of the following amounts: Outstanding remuneration: - LYD 38,200 for his salaries between September to December 2022, plus 5% interest p.a. as from the due dates (i.e. 9,5504) - LYD 2,400 as outstanding food costs for the months of October, November and December 2022 (i.e. 8003), plus 5% interest p.a. as from the due dates

• EUR 310 as ticket reimbursement, Benhazi-Tunisia, calculated in economy class or established by FIFA Travel.

Compensation: - LYD 76,000 as residual value of the contract (January 2023 until August 2023, i.e. 9,5508); - LYD 6,400 for residual food costs (January 2023 until August 2023, i.e. 8008);

12. In its reply, the club stated that the player received an advance of USD 10,000, equivalent to LYD 54,200, for his salaries from 20 September 2022 until 15 March

2023.

13. The club acknowledged that is issued a penalty against the player on 8 December 2022, by means of which it deducted half of his salary and asked him to improve his level.

14. The club further noted that the player left the country on 17 January 2023, and thus considered that this proves that he had his passport.

15. The club stated that it tried to persuade the player to return.

16. The club requested the refund of LYD 54,200, as well as the payment of LYD 95,800 for the full value of the contract.

17. The club provided the following receipts: LYD 800 for “living expenses for month 9/2022 from 20th Sep 2022 to 20th Oct 2022.” LYD 800 for “living expenses for month 10/2022” LYD 800 for “living expenses from 20th Nov 2022 to 20th Dec 2022.”

18. In his replica, the Claimant underlined that the club acknowledged that it reduced the player’s salary due to a disciplinary sanction. The club considered that said sanction is not proportional and did not respect any right to be hard. pg. 5

REF. FPSD-9276

19. As to the receipts provided by the club, the player explained that he never saw them before and they do not relate to any contractual amount.

20. In its duplica, the Respondent confirmed its previous arguments. pg. 6

REF. FPSD-9276

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

1. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as Judge or Single Judge) 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 15

February 2023 and submitted for decision on 21 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.

2. 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), 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 player from Tunisia and a club from Libya.

3. Subsequently, the Single Judge 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 (October 2022 edition), and considering that the present claim was lodged on 14 February 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

4. 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

5. Its competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the pg. 7

REF. FPSD-9276 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 it considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

6. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that, on 20 September 2022, the parties concluded an employment contract valid as from the date of signature until 15 August 2023.

7. Subsequently, the Single Judge noted that the player lodged a claim before FIFA for outstanding remuneration and breach of contract arguing that, after having put the club in default, he unilaterally terminated the contract with the club on 19 January 2023. In his default notice of 3 January 2023, the player also argued that the amounts for the months of September, October, November, and December 2022, for a total of LYD 38,500, remained outstanding

8. In particular, the Single Judge observed that, in his termination notice, the player stated that the club confiscated his passport and only returned it after FIFA's involvement. The player also argued that the club failed to pay him player for multiple months, neglected to regularize his administrative situation in Libya for legal work and residence, and

unjustifiably expelled him from the professional team.

9. On the other hand, the Single Judge took note of the position of the club, which, inter alia, argued that it penalized the player by deducting half of his salary and requested him to improve his performance. The club believed that the player had his passport because he left the country on 17 January 2023. The club also stated that the player received an advance of USD 10,000, equivalent to LYD 54,200, for his salaries from 20 September 2022 until 15 March 2023.

10. In view of the above, the club requested a refund of LYD 54,200 and also demanded the payment of LYD 95,800, representing the full value of the contract.

11. In this context, the Single Judge acknowledged that it its task was to determine whether the player had a just cause to terminate the contract.

12. With this idea in mind, the Single Judge referred to art. 14 par. 1 of the Regulations, according to which “a contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause.”, as well as to art. 14 bis par. 1 of the same rules, according to which, “in the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s).” pg. 8

REF. FPSD-9276

13. With regard to the alleged payments, the Judge considered the principle of burden of proof and carefully examined the documentation submitted by the club. He was observed that the club's provided receipts amounted to only LYD 2,400, which is significantly less than the amount that was allegedly outstanding at the date of termination of the contract.

Furthermore, the Judge highlighted that these receipts were related to "living expenses" rather than salary payments. Consequently, the Judge concluded that the club failed to fulfil its burden of proof.

14. The Judge then turned his attention to the fines imposed by the club. In particular, he emphasizes that the imposition of fines, as well as any other financial sanctions, should not be utilized by clubs as a means to settle their outstanding financial obligations towards players. Moreover, the club's imposition of fines without due process can be considered an abusive practice, which is unacceptable. As a result, the Judge established that he cannot accept said fines as being valid.

15. In view of the above, the Single Judge concluded that, at the date of the termination of the contract (19 January 2023), the player did not receive his salaries from September until December 2023. The Judge concluded that the club had seriously neglected its contractual obligations towards the player in a continuous and constant manner.

16. Therefore, for this sole reason, he terminated the contract without just cause. As a result, the player is entitled to compensation. ii. Consequences

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

18. However, before establishing the amount of due compensation, the Judge recalled that the player is entitled to his outstanding dues up until the date of the date of termination of the contract.

19. The Judge observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, during the period from September 2022 until January 2023, amounts to LYD 9,5505 = LYD 47,750.

20. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the 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. LYD 47,750.

21. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Football Tribunal in this regard, the latter decided to award the Claimant interest at pg. 9

REF. FPSD-9276 the rate of 5% p.a. on the outstanding amounts as from the due dates until the date of effective payment.

22. Having stated the above, the 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 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.

23. In application of the relevant provision, the 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 Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

24. As a consequence, the 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 Judge recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

25. Bearing in mind the foregoing as well as the claim of the player, the 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. In particular, the Judge observed that, from February 2023 until 15 August 2023, the player would earn 6,59,550 = LYD 62,075. To this amount, the Judge also added the living expenses, i.e. 6,5800 = LYD 5,200, as the club tacitly accepted that there was an agreement in this respect.

26. Consequently, the Judge concluded that the amount of LYD 67,275 (i.e. LYD 62,075 + LYD 5,200) serves as the basis for the determination of the amount of compensation for breach of contract.

27. In continuation, the 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. pg. 10

REF. FPSD-9276

28. Indeed, the player found employment with Avenir Sportif Oued Ellil, with a period of validity as from 27 January 2023 until 30 June 2023. In accordance with the pertinent employment contract, the player was entitled to approximately TND 900 per month (cf. point I. 10 above). Therefore, the Judge estimated that the player mitigated his damages in the total amount of that, from February 2023 until June 2023, the player would earn TND 9005 = TND 4,500, equivalent to approx. LYD 7,000.

29. As a result, at this stage, the mitigated compensation would amount to LYD 60,275 (i.e. LYD 67,275 – LYD 7,000).

30. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Single Judge confirmed that the contract termination took place due to said reason i.e. overdue payables by the club, and therefore decided that the player shall receive additional compensation.

31. Thus, the Single Judge observed that, in principle, the player should receive an additional compensation of 9,5503 = LYD 28,650, i.e. three times the monthly remuneration of the player.

32. Therefore, at this stage, the compensation due to the player would amount to LYD 88,925.

(i.e. LYD 60,275 + 28,650).

33. However, the Single Judge referred at this point to art. 17 par. 1 ii of the Regulations, according to which “the overall compensation may never exceed the rest value of the prematurely terminated contract.”

34. 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 LYD 67,275 to the player (i.e. the residual value of the contract, as determined above), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

35. Lastly, taking into consideration the player’s request as well as the constant practice of the Football Tribunal in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of the date of termination of the contract until the date of effective payment. iii. Compliance with monetary decisions

36. 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 its decision, the pertinent FIFA pg. 11

REF. FPSD-9276 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.

37. 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.

38. Therefore, bearing in mind the above, 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.

39. 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.

40. 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.

d. Costs

41. 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.

42. 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.

43. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 12

REF. FPSD-9276

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Taler Magherbi, is partially accepted.

2. The Respondent, Al Helal Sporting, must pay to the Claimant the following amounts: - LYD 47,750 as outstanding remuneration plus interest p.a. as follows: - 5% interest p.a. over the amount LYD 9,550 of as from 1 October 2022 until the date of effective payment; - 5% interest p.a. over the amount LYD 9,550 of as from 1 November 2022 until the date of effective payment; - 5% interest p.a. over the amount LYD 9,550 of as from 1 December 2022 until the date of effective payment; - 5% interest p.a. over the amount LYD 9,550 of as from 1 January 2023 until the date of effective payment; - 5% interest p.a. over the amount LYD 9,550 of as from 1 February 2023 until the date of effective payment; - LYD 67,275 as compensation for breach of contract without just cause plus 5% interest p.a. as from 19 January 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. 13

REF. FPSD-9276

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. 14