Labour Disputes
Texto da decisão
REF FPSD-7205
Decision of the
Dispute Resolution Chamber
passed on 01 February 2023
regarding an employment-related dispute concerning the player
Abdallah Mohannad Abdel Rahman Alattar
BY:
Frans de Weger (the Netherlands), Chairperson
Roy Vermeer (the Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT / COUNTER-RESPONDENT:
Abdallah Mohannad Abdel Rahman Alattar, Jordan
Represented by Mr Emad Yacoub Hanayneh
RESPONDENT / COUNTER-CLAIMANT:
Al Ahli SC, Bahrain
Represented by Messrs Nader Jalal Alawadhi and
Abdulrahman Ahmer Ebrahim
INTERVENING PARTY:
Al Hussein SC, Jordan
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I. Facts of the case
1.
On 21 June 2021, the Jordanian player, Abdallah Mohannad Abdel Rahman Alattar
(hereinafter: the Claimant), and the Bahraini club, Al Ahli SC (hereinafter: the Respondent)
signed an employment contract (hereinafter: the Contract) valid as from 1 August 2021
until the end of the 2021/2022 season (cf. Transfer Matching System / “TMS”:
31 May 2022).
2.
In accordance with Term 1 of the Contract, the parties agreed that the Claimant would be
employed as a player for the first team.
3.
In accordance with Term 2 of the Contract, the Respondent undertook to pay the Claimant
a total salary for the contractual term of USD 60,000, payable in monthly salaries of
USD 6,000 each between August 2021 and May 2022, as well as an advance payment of
USD 3,000, which is paid upon arrival to Bahrain and deducted from the Claimant’s August
2021 salary.
4.
Moreover, in accordance with Term 3 of the Contract, the Respondent undertook to pay
the Claimant one airline ticket per season, for himself, his wife and his son.
5.
Furthermore, in accordance with Term 5 of the Contract, it was agreed as follows:
“The Club will be entitled to terminate this contract and deduct all outstanding payment
balances without any compensation if the Player: (…)
6.
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the parties, the club and the player agreed that if the player suffers an injury that
prevents him from continuing to play or for technical reasons, the club has the right to
terminate the contract, provided that the club pays the player the compensation in the
amount of only one month’s salary and the player is not entitled to demand any other
compensation.
-
if the player elects to terminate this contract before its due date, or has received an
offer from any other club he must pay to AL Ahli Club a sum of Sixty thousand US
dollars (USD 60,000)”
On 22 November 2021, the Claimant and the Respondent allegedly organized a meeting
in which the latter informed the former that it wished to terminate the Contract. The
Respondent, in this respect, allegedly presented the Claimant with two documents, which
the latter refused to sign:
-
“Decision of the Board of Directors”
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“Agreement to mutually terminate the Contract by mutual consent”
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7.
Following the Claimant’s refusal to sign the two documents, the Respondent allegedly
began engaging in abusive behaviour towards the former, such as excluding him from
first team training since 24 November 2021, and demoting him to the U-20 team.
8.
On 25 November 2021, the Claimant and representatives of the Respondent exchanged
several messages on WhatsApp, in which the following statements were allegedly made:
Claimant:
“Greetings [Respondent Representative], yesterday, I came to the Club to attend the team’s
training session, but Mr. Nader Abdel Jalil told me not to enter the training session because the
club dispensed with my services and decided to terminate the contract. After that he told me
to stay and wait at the department of the club’s management.
I asked Mr. Nader to provide me with an official letter indicating that. He replied that he would
inform the club’s management, since yesterday until this Thursday, I did not receive any official
letter from the club. Furthermore, my “player’s agent” Mr. Mahmoud Abu Idris contacted you
and Mr. Nader Abdel Jalil, but he also did not receive any response.
Therefore, I am sorry to say that if I did not receive any letter indicating that I must not attend
the training session, I will come to the club and to attend the training session and register my
presence.”
Respondent:
“Good evening [Claimant], As I told you yesterday, please do not attend the training session
also this evening until we find a solution for your problem. Best wishes.”
9.
On 27 November 2021, the Respondent sent a letter informing the Claimant that, due to
his injury and consequent treatment, his technical level was insufficient to help the first
team professionally, and that he will be transferred to the reserve team until further
notice to improve his technical level and rehabilitate.
10. On the same day, the Claimant sent a letter in response, stating that he had not received
reimbursement for the travel tickets to which he was entitled, in the amount of JOD 640,
as well as denouncing the alleged abusive behaviour until that point, including attempting
to force him to sign a mutual termination and excluding him from training as from
24 November 2021. Furthermore, the Claimant requested to be officially reintegrated
within 10 days, or else he will consider the Contract terminated without just cause.
11. On 5 December 2021, the Claimant sent a reminder in relation to the aforementioned
warning.
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12. On the same day, the Respondent sent a reply to said letter, outlining that, although the
Respondent “verbally approached” the Claimant for an amicable settlement, no such
settlement was reached, meaning that the Respondent will continue with the contractual
relationship as originally planned. Furthermore, the Respondent outlined that the
decision to demote the Claimant to the second team is entirely technical and football
related.
13. On 6 December 2021, the Claimant sent a further reminder and extended the deadline
for the Respondent to reintegrate the former for a further 10 days, otherwise he will
consider the Contract terminated.
14. The Respondent did not reply to said correspondence, and on 31 December 2021, the
Claimant left Bahrain. No termination letter was sent in this respect.
15. On 25 January 2022, the Claimant and the Jordanian club Al Hussein Sport Club
(hereinafter: the New Club) signed an employment contract (hereinafter: the New Contract)
valid as from 1 February 2022 until the end of the 2022 season (cf. TMS:
10 December 2022).
16. In accordance with the New Contract, the Claimant was entitled to a total remuneration
of JOD 40,000, payable as follows:
-
JOD 20,000 as advance payment;
-
JOD 2,000 monthly remuneration over 10 months (February 2022 - December 2022).
II. Proceedings before FIFA
17. On 25 August 2022, the Claimant filed the claim at hand before FIFA.
18. On 26 September 2022, the Respondent filed a counterclaim against the Claimant and
the New Club.
19. A brief summary of the position of the parties is detailed in continuation.
a. Position of the Claimant
20. According to the Claimant, the Respondent acted abusively by excluding him from the
team after he refused to sign a mutual termination agreement. In this respect, the
Claimant felt that, since his demotion to the reserve team / U-20 was immediately after
he refused to sign the two aforementioned documents, the Respondent was attempting
to humiliate him and force him to leave on his own.
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21. Furthermore, the Claimant stated that the allegations about his technical level and
development are fabricated and unfounded, and that the Respondent was trying to get
rid of him for “vague and incomprehensible” reasons.
22. The Claimant requested USD 12,000 as outstanding remuneration, corresponding to the
salaries for November 2021 and December 2021, as well as reimbursement for airplane
tickets from Bahrain to Jordan, in the amount of JOD 640.
23. Furthermore, the Claimant requested compensation, in the total amount of USD 20,670.
24. Lastly, the Claimant requested outstanding remuneration of 5% p.a. “as from the due
dates” on all amounts.
b. Counterclaim of the Respondent
25. In its counterclaim, the Respondent contested the authenticity of the documents allegedly
presented to the Claimant on 22 November 2021, stating that said documents do not
contain the stamp of the Respondent and are not signed by an official representative,
meaning that the letters were forged.
26. Furthermore, the Respondent acknowledged that it demoted the Claimant to the reserve
team, arguing that doing so does not constitute a violation of the FIFA Regulations. The
Respondent further confirmed that the Claimant was angered by this, and that he
considered this as “revenge by the management of the club because he didn’t accept to sign
on the termination notice”. Moreover, the Respondent argued that the Claimant had been
absent from training sessions prior to the date he refused to sign said termination
agreement, which would have granted the former the right to terminate the Contract in
accordance with Term 5 thereunder.
27. Additionally, the Respondent pointed out that the default notice dated 5 December 2021
explicitly states that the Claimant was refusing to train, bringing it beyond dispute that
the latter was in breach of his contractual obligations.
28. The Respondent further argued that the Claimant was urged by his legal representative
to terminate the Contract, without granting the Respondent an opportunity to retain him.
29. Therefore, the Respondent requested compensation in the amount of USD 60,000 and
sporting sanctions to be imposed on the Claimant.
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c. Claimant’s response to counterclaim
30. In his reply to the counterclaim, the Claimant outlined that the Respondent provided no
evidence as to the allegations of forgery, and referred to an email sent on
5 December 2021 in which the Respondent allegedly acknowledged that it attempted to
make the Claimant sign a mutual termination agreement.
31. Beyond this, the Claimant largely reiterated the arguments submitted in the initial
petition.
d. New Club’s response to counterclaim
32. The New Club outlined that the Respondent’s decision to demote the Claimant to the
reserve team was sudden and without a valid reason, and that this constituted abusive
behaviour in attempting to make the Claimant terminate the Contract prematurely.
33. Beyond this, the New Club largely reiterated the arguments submitted by the Claimant
and provided no arguments, in particular, concerning its potential joint liability.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 25 August 2022 and submitted
for decision on 01 February 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 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 October 2022 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
Jordanian player and a Bahraini club.
3.
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 (October 2022
edition), and considering that the present claim was lodged on 25 August 2022, the July
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 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
5.
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.
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i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber 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.
7.
In this respect, the Chamber noted that its task was to determine whether, in light of the
parties’ argumentations and evidence submitted to the file, the Claimant had just cause
to terminate the Contract or not, and what the consequences of such termination would
be for either party.
8.
The Chamber recalled its own jurisprudence, as well as the wording of art. 14 of the
Regulations, according to which only a breach of contract or misconduct of a certain
degree of seriousness and consistency justified a premature termination of the relevant
employment contract. As such, if the employment relationship is no longer reasonably
and objectively sustainable between the parties, the Contract may be terminated before
its term. In other words, if less restrictive measures than the immediate termination of
the relevant contract may be deployed in order to have a party in breach of the relevant
contract comply therewith, such measures must be used rather than putting an end to
the employment relationship. The premature termination of a contract may only be used
as an ultima ratio measure.
9.
Thus, the Chamber firstly revisited the argumentation submitted by the Claimant, that the
Respondent attempted to force him to sign a termination agreement, on the basis that
its board of directors had agreed that he was no longer desired.
10. On the other hand, the Chamber took note of the Respondent’s submissions, in particular
that it denied attempting to get rid of the Claimant, as the alleged “board decision” was
neither signed, nor stamped, and that the alleged mutual termination agreement was
fabricated for the sake of the present proceedings.
11. Lastly, the Chamber remarked that, upon request of the FIFA General Secretariat, the
Claimant supplied the original versions of the termination agreement and board decision,
allegedly sent on 22 November 2021 by the Respondent.
12. Having stated the above, the Chamber firstly pointed out that the documents sent by the
Claimant, despite being described as “original versions”, appeared to be merely
photocopies of the requested files. The Chamber recalled the wording of art. 13 par. 5 of
the Procedural Rules, namely that a party asserting a certain fact bears the burden of
proving its veracity.
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13. Thus, the Chamber firstly established that, due to their limited probative value, these
documents and their ramifications could not be taken into consideration for determining
whether or not the Contract was terminated with or without just cause.
14. Subsequently, the Chamber turned to the remaining facts of the case, and observed that
the allegation of the salaries of November 2021 and December 2021 remaining unpaid
was not contested by the Respondent.
15. Furthermore, with regards to the request for reimbursement of the flight ticket in the
amount of JOD 640, as said ticket was dated 28 September 2021, the Contract had already
commenced several months prior to said date, and the Claimant was only entitled to one
ticket per season, the Chamber was not satisfied that the burden of proof as to the
entitlement for reimbursement for said ticket was met in the case at hand.
16. Thus, and in any event, the Chamber concluded that USD 12,000 would be payable to the
Claimant as outstanding remuneration, corresponding to the abovementioned salary
instalments.
17. Furthermore, the Chamber recalled that the Claimant had sent a formal letter to the
Respondent, requesting to be reintegrated into the squad within 10 days, failing which he
would consider the Contract terminated. In this respect, the Chamber wished to point out
that the Claimant was hired as a player specifically for the first team (cf. Term 1 of the
Contract), and that the Claimant’s demotion to the U-20 squad, though described as a
“technical decision” of the Respondent, was “until further notice”, rendering the Claimant’s
contractual situation uncertain and, for the time being, contrary to what had been agreed
upon mutually.
18. Thus, based on the totality of circumstances at the time the Claimant departed from the
Contract, namely that the Respondent had been in default of payment of two monthly
salaries, as well as failing to reintegrate the Claimant into the team in accordance with the
contractual obligations, the Chamber established that the Respondent had been in
breach of the Contract in a consistent and severe manner, so as to render the termination
of the Contract an ultima ratio measure.
19. Therefore, the Chamber concluded that the Contract was terminated with just cause by
the Claimant. For completeness’ sake, the Chamber deemed that the Contract was
terminated on 31 December 2021, i.e. when the Claimant departed Bahrain in order to
return home.
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ii. Consequences
20. 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.
21. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, are equivalent to two salaries
under the Contract, amounting to USD 12,000.
22. 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).
23. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber 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:
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On the amount of USD 6,000, as from 1 December 2021 until the date of effective
payment;
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on the amount of USD 6,000, as from 1 January 2022 until the date of effective
payment.
24. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent 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 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.
25. 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
recalled the wording of Term 5 of the Contract, which read as follows:
“The Club will be entitled to terminate this contract and deduct all outstanding payment
balances without any compensation if the Player:
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(…)
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the parties, the club and the player agreed that if the player suffers an injury
that prevents him from continuing to play or for technical reasons, the club has
the right to terminate the contract, provided that the club pays the player the
compensation in the amount of only one month’s salary and the player is not
entitled to demand any other compensation.
-
if the player elects to terminate this contract before its due date, or has
received an offer from any other club he must pay to AL Ahli Club a sum of Sixty
thousand US dollars (USD 60,000).”
26. In respect of said provision, the Chamber referred to its own jurisprudence, according to
which clauses of such nature shall be considered where they meet the principles of
proportionality and reciprocity. The Chamber also remarked that these criteria were
applicable cumulatively.
27. Having considered the above, the Chamber pointed out that the clause in question was
not reciprocal, on account of the fact that the Claimant was only entitled to one monthly
salary if the Respondent decided to unilaterally terminate the Contract, whereas the latter
would be able to claim liquidated damages in the amount of USD 60,000 – i.e., the value
of the entire Contract. In light thereof, the Chamber decided that the clause should be
disregarded for the calculation of compensation payable to the Claimant in the present
case.
28. Consequently, the members of the Chamber 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. 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.
29. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant 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 30,000 (i.e. residual value of the Contract,
or 5 monthly salaries of USD 6,000 each) serves as the basis for the determination of the
amount of compensation for breach of contract.
30. In continuation, the Chamber 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 DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such
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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.
31. Indeed, the Claimant found employment with the New Club. In accordance with the New
Contract, the Claimant was entitled to a total remuneration of JOD 40,000, i.e.
approximately USD 55,000. Therefore, the Chamber concluded that the Claimant
mitigated his damages entirely.
32. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a Claimant 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 Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the Respondent, and
therefore decided that the Claimant shall receive additional compensation.
33. In this respect, the DRC decided to award the amount of additional compensation of
USD 18,000, i.e. three times the monthly remuneration of the Claimant.
34. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay the
amount of USD 18,000 to the Claimant (i.e. USD 30,000 minus USD 55,000 plus
USD 18,000), 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 Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as of 25 August 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
36. 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.
37. 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.
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38. 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.
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 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
41. 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.
42. 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.
43. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Abdallah Mohannad Abdel Rahman
Alattar, is partially accepted.
2.
The Respondent / Counterclaimant, Al Ahli Sports Club, has to pay to the Claimant /
Counter-Respondent, the following amount(s):
- USD 12,000 as outstanding remuneration plus interest p.a. as follows:
-
5% interest p.a. over the amount of USD 6,000 as from 1 December 2021 until the date
of effective payment;
-
5% interest p.a. over the amount of USD 6,000 as from 1 January 2022 until the date of
effective payment.
- USD 18,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 25 August 2022 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counterclaimant is 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 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.
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7. The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with article 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
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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).
CONTACT INFORMATION
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