FIFA - Decisiones estatuto del jugador - Arfaoui 14032023

REF. FPSD-8892

Decision of the Players’ Status Chamber passed on 14 March 2023 regarding an employment-related dispute concerning the coach Mohamed Moncef Arfaoui BY: Tomás González Cueto (Spain) Single Judge of the Players’ Status Chamber

CLAIMANT:

Mohamed Moncef Arfaoui, Tunisia Represented by Mr Mohamed Chebbi

RESPONDENT:

El Soqour Football Club, Libya Represented by Sport Makers Law & Management Firm pg. 2

REF. FPSD-8892

I. Facts of the case

1. On 26 September 2021, the Tunisian coach Mohamed Moncef Arfaoui (hereinafter: the Claimant) and the Libyan club El Soqour Football Club (hereinafter: the Respondent) allegedly concluded an employment contract (hereinafter: the Contract) valid as from the date of signature until 30 June 2023.

2. In accordance with art. 3 of the Contract, the Respondent undertook to pay the Claimant a monthly salary of LYD 20,000 for the season 2021/2022, and LYD 25,000 for the season

2022/2023.

3. Furthermore, the Contract stipulated under art. 8 that the Respondent undertook to pay the Claimant a monthly “allowance” of LYD 800 throughout the contractual term.

4. Moreover, the Contract stipulated under art. 9 that the Respondent was to provide medical care to the Claimant throughout the contractual term.

5. On 1 February 2022, the Claimant was allegedly informed verbally of his dismissal by the

Respondent.

6. At an unspecified date, the Respondent announced the hiring of a new head coach.

7. On several unspecified occasions, the Claimant allegedly attempted to contact the Respondent regarding his contractual situation, to no avail.

8. On 19 May 2022, the Claimant formally put the Respondent in default, requesting “the

amounts due under the Contract, which have not been paid since the dismissal”.

II. Proceedings before FIFA

9. On 13 January 2023, the Claimant lodged a claim before FIFA for the unjust termination of the Contract by the Respondent.

a. Position of the Claimant

10. The Claimant outlined that the Respondent provided no justification as to the dismissal and verbally informed the Claimant that he was no longer needed, shortly thereafter hiring a new head coach.

11. The Claimant also asserted that he was not paid several monthly salaries and accommodation allowances, in the amount of LYD 64,000, as well as being entitled to reimbursement of medical costs and a flight ticket, in the amount of TND 340 and TND 510 pg. 3

REF. FPSD-8892 respectively.

12. Therefore, the Claimant requested outstanding remuneration of LYD 64,000 plus TND 850, as well as compensation in the value of LYD 413,000, corresponding to the purported residual value of the Contract.

13. The Claimant also requested interest on the outstanding salary instalments and the compensation (i.e. not on the flight ticket and medical bill) of 5% p.a. as from the due dates and the day following the date of termination of the Contract respectively.

b. Position of the Respondent

14. In its reply, the Respondent alleged that the Contract is falsified by the Claimant, and, in this respect, provided evidence of a civil court verdict from Libya stating that the Contract was falsified, with there being further investigations of a criminal nature pending in Libya.

15. Furthermore, the Respondent outlined that the Claimant had received all of his due amounts under the “real contract”, an alleged copy of which had been provided.

16. At the same time, the Respondent confessed that the Claimant was dismissed for poor performance, and that, pursuant to the “real contract”, he is entitled to compensation of one

monthly salary by the Respondent.

17. In conclusion, the Respondent rejected the claim.

c. Comments of the Claimant

18. The Claimant stressed that the Contract was not falsified, and stated that the documents alluded to in the Respondent’s submission may not be taken into consideration as they were not translated into English, and even if they were, they did not contain the Claimant’s signature.

19. The Claimant also outlined that he never saw the court order on which the Respondent is attempting to rely, and that he was never called to a hearing in Libya.

20. Lastly, the Claimant pointed out that the Respondent, by confirming that he was dismissed for poor performance, admitted the existence of the Contract. pg. 4

REF. FPSD-8892

III. Considerations of the Players’ Status Chamber

a. Competence and applicable legal framework

1. First of all, the Single Judge of the Players’ Status Chamber (hereinafter also referred to as 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 13 January 2023 and submitted for decision on 14 March 2023. Taking into account the wording of art. 34 of the October 2022 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. 2 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players October 2022 edition), the Single Judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Tunisian coach and a Libyan club.

3. 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 (October 2022 edition), and considering that the present claim was lodged on 13 January 2023, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. Moreover, the Single Judge took note of the fact that the Respondent contested the admissibility of the claim at hand, on the basis of a judicial order issued by a Libyan civil court stating that the Contract at the basis of the dispute had been falsified and that proceedings against the Claimant for liability due to forgery were presently ongoing in

Libya.

5. In this respect, the Single Judge remarked that the Respondent submitted evidence in the shape of said alleged court order, but no evidence of any ongoing proceedings, as well as alluding to a “real contract” in its submission. The Single Judge remarkably observed that said alleged “real contract” was submitted only in Arabic, and in any event, only contained the signature and stamp of the Respondent.

6. Furthermore, the Single Judge observed that the Respondent equally admitted in its submission that the Claimant had been dismissed for poor performance, thereby explicitly confirming that there had been a contractual relationship of some form between the parties. pg. 5

REF. FPSD-8892

7. Taking into consideration the above-mentioned argumentations, as well as referring to art. 13 par. 5 of the Procedural Rules, the Single Judge considered that, despite the court order allegedly determining the Contract as falsified, the Respondent had confirmed the existence of a contractual relationship between the parties by admitting that the Claimant was dismissed on the grounds of poor performance. Furthermore, and equally as

importantly, the Single Judge established that the Respondent had not provided valid evidence to corroborate the allegation that there had been another contract established between the parties than the one submitted by the Claimant.

8. As such, in accordance with the principle of venire contra factum proprium, the Single Judge considered that the Respondent failed to successfully contest the existence and validity of the Contract, and that the line of argument that the claim is inadmissible should be rejected. The Single Judge thus continued his deliberations.

b. Burden of proof

9. 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 he may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS). Lastly, the Single Judge pointed out that, in accordance with art. 13 par. 3 of the Procedural Rules, he has ultimate discretion as to the weight he gives to evidence, and that all evidence upon which a party intends to rely must be submitted in its original language and, if need be, in either English,

French or Spanish. c. Merits of the dispute

10. 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 documentation on file. However, the Single Judge 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.

1. Main legal discussion and considerations

11. 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 Respondent, as well as the alleged default of several financial obligations under the Contract. pg. 6

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12. In this context, the Single Judge acknowledged that, with the validity of the Contract having been previously established, his task was to determine whether the parties had, indeed, failed to comply with the contractually stipulated payments, whether or not the Contract was terminated by the Respondent with or without just cause, and what the consequences of such potentially unlawful termination may be.

13. To begin with, the Single Judge recalled the line of argument by the Claimant that the Respondent failed to pay three monthly salaries between November 2021 and January 2022, in the amount of LYD 60,000, as well as five accommodation allowances between September 2021 and January 2022, in the amount of LYD 4,000.

14. On the other hand, the Single Judge noted, the Respondent had contended – in a generic manner – having “paid all due amounts to the Claimant”, without providing any evidence that it had indeed done so.

15. In line with the above, and with reference to art. 13 par. 5 of the Procedural Rules, the Single Judge firstly established that the Respondent failed to meet its burden of proving that the amounts in dispute had, indeed, been remitted as alleged. Therefore, the Single Judge held that the amount of LYD 64,000 remained outstanding.

16. Furthermore, the Single Judge turned to the request of TND 850, corresponding to the medical expenses of the Claimant and the cost of the Claimant’s flight ticket to return home following the termination of the Contract.

17. In respect of these concepts, the Single Judge noted that the Respondent had contractually undertaken to provide the Claimant with adequate medical care throughout the term of the Contract. Furthermore, the Single Judge referred to his own jurisprudence to establish

that players are entitled to reimbursement of their flight tickets to return home following the termination of a contractual relationship. Lastly, in accordance with art. 13 par. 5 of the Procedural Rules, the Single Judge remarked that the Claimant provided evidence of having incurred the costs of TND 850 as claimed.

18. Therefore, the Single Judge also established that the Claimant is entitled to reimbursement of the said amounts.

19. Having concluded his deliberations concerning the outstanding amounts, the Single Judge went on to consider the lawfulness of the contractual termination.

20. In this respect, the Single Judge noted that the Respondent admitted in its submission having dismissed the Claimant on the grounds of poor sporting performance.

21. At this point, the Single Judge recalled his longstanding jurisprudence, in accordance with which only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria which do not reasonably pg. 7

REF. FPSD-8892 permit to expect the continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order to ensure the fulfilment of the contractual duties by the counterparty, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

22. Furthermore, the Single Judge recalled that, equally in line with his longstanding jurisprudence, unsatisfactory performance can never be considered a valid reason for an employer to cease paying due salaries or terminate an employment contract, as this is a purely unilateral and subjective evaluation by the latter.

23. On account of the above, the Single Judge concluded that the termination of the Contract by the Respondent was not an ultima ratio measure, and that, as a result, it had occurred without just cause to the Claimant’s detriment. Thus, it was held that the Respondent is liable to pay the Claimant compensation for such unlawful contractual breach.

1. Consequences

24. 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.

25. The Single Judge observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the Claimant, are equivalent to LYD 64,000 plus TND 850, corresponding to outstanding salaries, accommodation allowances and reimbursement for flight and medical expenses under the Contract.

26. 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.

LYD 64,000 plus TND 850.

27. 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 salaries only, as from the following dates: - on the amount of LYD 20,000, as from 1 December 2021 until the date of effective payment; - on the amount of LYD 20,000, as from 1 January 2022 until the date of effective payment; - on the amount of LYD 20,000, as from 1 February 2022 until the date of effective payment.

28. With the above having been established, the Single Judge turned to the calculation of the amount of compensation payable to the Claimant by the Respondent in the case at stake. pg. 8

REF. FPSD-8892

29. In doing so, the Single Judge firstly recapitulated that, in accordance with art. 6 of Annexe 2 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 Claimant 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.

30. 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.

31. As a consequence, the Single Judge determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 6 par. 2 of Annexe 2 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.

32. Bearing in mind the foregoing as well as the claim of the Claimant, the Single Judge proceeded with the calculation of the monies payable to the former under the terms of the Contract from the date of its unilateral termination until its end date. Consequently, the Single Judge concluded that the amount of LYD 400,000 (i.e. the residual value of the Contract) serves as the basis for the determination of the amount of compensation for breach of contract.

33. In continuation, the Single Judge verified as to whether the Claimant 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 Single Judge as well as art. 6 par. 2 lit. b) of Annexe 2 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 Claimant’s general obligation to mitigate his damages.

34. In the present case, the remained unemployed following the contractual termination. Thus, the Single Judge concluded that the Claimant was not able to mitigate his damages.

35. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the Respondent must pay the amount of LYD 400,000 to the Claimant (i.e. the residual value of the Contract), which pg. 9

REF. FPSD-8892 was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

36. Lastly, 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 on said compensation at the rate of 5% p.a. as of 2 February 2022 until the date of effective payment. iii. Compliance with monetary decisions

37. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 8 par. 1 and 2 of Annexe 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.

38. 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.

39. 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. 8 par. 2, 4, and 7 of Annexe 2 of the Regulations.

40. 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.

41. 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. 8 par. 8 of Annexe 2 of the Regulations.

d. Costs

42. 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. pg. 10

REF. FPSD-8892

43. 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.

44. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties. pg. 11

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IV. Decision of the Players’ Status Chamber

1. The claim of the Claimant, Mohamed Moncef Arfaoui, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, El Soqour Football Club, must pay to the Claimant the following amount(s): - LYD 64,000 as outstanding remuneration plus interest p.a. as follows:

• 5% interest p.a. over the amount LYD 20,000 of as from 1 December 2021 until the date of effective payment; - 5% interest p.a. over the amount LYD 20,000 of as from 1 January 2022 until the date of effective payment; - 5% interest p.a. over the amount LYD 20,000 of as from 1 February 2022 until the date of effective payment. - TND 850 as outstanding remuneration. - LYD 400,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 2 February 2022 until the date of effective payment.

4. Any further claims of the 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. 8 of Annexe 2 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.

7. The consequences shall only be enforced at the request of the Claimant in accordance with art. 8 par. 7 and 8 of Annexe 2 and art. 25 of the Regulations on the Status and Transfer of Players. pg. 12

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8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero

Chief Legal & Compliance Officer

pg. 13

REF. FPSD-8892

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