Labour Disputes
Texto da decisão
REF. FPSD-10189
Decision of the
Dispute Resolution Chamber
passed on 16 August 2023
regarding an employment-related dispute concerning
the player Ahmad Elias Ahmad Ali
BY:
Roy VERMEER (the Netherlands)
CLAIMANT:
Ahmad Elias Ahmad Ali, Jordan
Represented by Emad Yacoub Hanayneh
RESPONDENT:
Jabal AL Mukabeer Club, Palestine
pg. 2
REF. FPSD-10189
I. Facts of the case
1.
On 30 November 2022, the Jordanian player, Ahmad Elias Ahmad Ali (hereinafter: the player
or Claimant) and the Palestinian club, Jabal AL Mukabeer Club (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract) valid as from 1
December 2022 until 30 May 2023.
2.
According to the contract, the Respondent undertook to pay the Claimant, inter alia, the
following amounts:
-
-
3.
USD 25,000 for the duration of the contract, being USD 10,000 payable as advance
payment and the remaining amount (USD 15,000) payable in monthly instalments
starting on 25 January 2023.
In case the club would win the “league title”, the player would be entitled to USD
5,000.
Clause 5 of the contract reads as follows:
“Duties of [the Claimant]
1. He shall respect the laws, the flag and the national anthem of the country.
2. He shall give his best in the matches, observe the rules of the game of football, accept the
decisions of the officials in the match and represent [the Respondent] in an exemplary
manner.
3. He shall practise fair play and proper conduct in all matches and in preparation for them
and to participate in training in accordance with the instructions of the First medical
reports submitted by [the Respondent].
4. He shall participate in all [the Respondent] sports events when requested to do so.
5. He shall refrain from negotiating with other clubs during the contract period (with the
exception of the last six months of the contract), according to the rules.
6. He shall not engage in or participate in any sports activity other than that of [the
Respondent], without its written consent.
7. He shall participate immediately in the training or match of the national team if he is
selected in its ranks when requested to do so.
8. He shall not resign during the term of the contract without the consent of [the
Respondent] except in a case of force majeure.
9. He shall notify [the Respondent] of his injury or illness and not seek medical treatment
without the knowledge of [the Respondent]’s doctor except for emergency, and he should
follow the treatment prescribed for him and with [the Respondent]’s consent.
10. [the Claimant] shall not disclose the secrets of [the Respondent] and not insult such part,
its associate or its fans in anyway.
11. He shall not leave the country without a writing consent of [the Respondent].
12. He shall respect the international and national anti-doping Rules and to appear before
the Doping Control Committee upon request and shall be considered a Doper in case of
abstention. He shall sign the relevant pledge in this respect.”
pg. 3
REF. FPSD-10189
4.
Clause 11.3 of the contract reads as follows:
“[The Claimant] shall not be entitled to terminate the contract on his own during its period
of validity, and if he does so for any reason, he shall be liable to pay [the Respondent] a
penalty clause amounting to fifty thousand shekels (50000 shekels) in cash or an amount
equivalent to $14000 (fourteen thousand dollars).”
5.
On 6 March 2023, the club ended its participation in the 2022/2023 Palestinian Professional
League.
6.
On 29 March 2023, the player sent to the club’s manager, Mr. Mohammad Abedat, the
following message via the application WhatsApp (quoted verbatim):
“Good evening, Abu Mustafa
Abu Mustafa, my brother, I am traveling on Friday, God willing, and a week ago I tried
to communicate with everyone in the club on the basis that the rest of my dues be paid before
I travel.
No one responded to me and I did not receive any amounts. If things are not arranged before
I travel and my dues are received, I will not wait any longer. I am very disturbed by the way
the club dealt with me because of my attempt to communicate with everyone, and I did
not get any responses, knowing that I made all my commitments and did not hesitate to
make any effort, and my brother, I would like to inform you so that you know.”
7.
On 30 March 2023, the player left Palestine.
8.
On 21 April 2023, the Claimant put the Respondent in default and requested payment of
USD 17,837 corresponding to the balance of the advance payment (USD 3,837), the salaries
from January to March 2023 (USD 9,000), and the amount related to the “league title”
winning bonus (USD 5,000); setting a 15-days’ time limit in order to remedy the default. The
default notice also included the following wording (quoted verbatim):
“In the event that the aforementioned player’s dues (17837) dollars are not paid within a
period of 15 days, the player considers that the contract has been terminated according to
the regulation of the Federation International of Football Associations, and he will file a
complaint with FIFA to claim all his rights in accordance with the applicable international
instructions.”
9.
On 30 April 2023, the legal representative of the club replied to the Claimant, inter alia, the
following (quoted verbatim):
“[…] 1. The agreement as you stated in your notice to my client is agreed upon and irrefutable
2. The player did not inform you of the amounts he received from my client, as he signed
each receipt either with his personal signature or with his voice confirmation of receipt of
pg. 4
REF. FPSD-10189
his pensions as agreed in the contract signed and confirmed by the Palestinian Football
Association.
3. The player left the country without informing my client and without receiving his written
consent, contrary to his commitment according to Article 5, Clause 11.
4. My client has sent a written letter urging your cl lent to come to the beginning of the
trainings to prepare for the activities this May.
5. If your client does not come to the country/Palestine until May 2 to participate in my
client's training, my client will consider that your client has terminated the contract without
any reason contrary to the instructions and laws of the International Federation of Football
Associations and will be sued by FIFA.
[…]”.
10. On 1 May 2023, the legal representative of the Claimant replied to the Respondent, inter
alia, the following (quoted verbatim):
“We would like to inform you that the player Ahmed Elias informed the club representatives
when he went to his homeland, Jordan, after the end of the official competitions in the State
of Palestine, and he also wishes to continue until the end of the contract period.
Therefore, the player asks the club to obtain a new entry permit to the Palestinian territories.
We also affirm our warning dated April 21, 2023, and not to delay the payment of financial
dues”.
11. On 3 May 2023, the Respondent replied to the Claimant, inter alia, the following:
-
-
The player failed to return to Palestine to resumetraining.
The player did not inform the club about his trip to Jordan.
The player had a visa for 170 days. The permission is not reusable, meaning that he
had to stay until the end of the specific period. The player was aware of this
information as mentioned in clause 5.11 of the contract. The procedure in order to
obtain a new visa would require at least 30 additional days. In conclusion: “Thus, [the
player] acted with the right to know the termination of the contract or at least for not
implementing the concluded contract and causing the termination of the contract
concluded between them”.
The player breached clauses 5.2, 5.3 and 5.4 of the contract.
The player terminated the contract and, according to clause 11.3, he should pay the
club a penalty of USD 14,000.
The Respondent would file a claim in front of FIFA.
12. On 4 May 2023, the Respondent sent a letter to the Claimant stating, inter alia, the following
(quoted verbatim):
“[…]
1. After [the Claimant] did not attend the team's exercises on May 02, 2023 at 17:00 as it
was located, [the Respondent] sent [the Claimant] a notification letter urging him to
adhere to the training.
pg. 5
REF. FPSD-10189
2. This notification also raised the Palestinian Federation.
3. [The Claimant] refuses to cooperate and at least comply with his obligations according
to the contract. According to his saying, "Communicate with the lawyer - the lawyer informs
you of that communication through the lawyer. I only have to block you."
4. [The Claimant]'s response shows that he is not bound by the contract. It is illegal, [the
Respondent]have the right to communicate directly with [the Claimant]in everything
related to the implementation of the obligations of both parties.
5. Until this hour, [the Claimant] has not contacted [the Respondent]and has not
announced his presence in his residence in Ramallah.
6. I inform you again about the actions of [the Claimant]that violate the regulations and the
terms of the contract […]”
13. On 5 May 2023, the legal representative of the Claimant replied, inter alia, to the
Respondent the following (quoted verbatim):
“ […]
We assure you that the player is ready to return to Palestine in the event that an entry permit
to the Palestinian territories is obtained during our notification period on April 21, 2023.
We remind the club to pay the player's full dues as stated in our notification; otherwise, the
procedures will be followed up with FIFA as stated in our notification dated April 21, 2023.
As you can recognize, we are very interested in cooperating with the club and responding to
your correspondence as quickly as possible, so the club must abide by Its duties stipulated
in the contract, and FIFA's regulations in this regard […]”
14. As per information contained in the FIFA Transfer Matching System (TMS), the Jordanian
2023 season started on 1 January 2023 and ended on 1 May 2023.
15. It remained undisputed between the parties that the club won the “Palestinian Professional
league 2022/2023”.
16. The player also informed FIFA that he remained unemployed following the termination of
the contract.
II. Proceedings before FIFA
17. On 10 May 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
18. In his claim, the player argued that the club failed to pay more than two salaries and
therefore, he had just cause to terminate the contract under art. 14bis of the FIFA
Regulations on the Status and Transfer of Players (RSTP). The player further stated that he
should be entitled to compensation in accordance with art. 17 of the RSTP.
pg. 6
REF. FPSD-10189
19. The Claimant requested the following relief:
-
USD 3,837 corresponding to the balance of the advance payment.
USD 9,000 corresponding to the salaries of January, February and March 2023.
USD 5,000 corresponding to the “league title” winning bonus.
USD 4,424 corresponding to the residual value of the contract.
An additional compensation of 3-6 salaries in accordance with art. 17 of the RSTP.
5% interest over the abovementioned amounts as from the due dates.
Sporting sanctions to be applied on the Respondent.
b. Position of the Respondent
20. In spite of having invited to do so, the Respondent did not submit its position to the claim.
pg. 7
REF. FPSD-10189
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. 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 10 May 2023
and submitted for decision on 16 August 2023. Taking into account the wording of art. 34
of the March 2023 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
22. Subsequently, the 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 par. 1 lit. b) of
the RSTP (May 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 Jordanian player and a Palestinian club.
23. 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 RSTP (May 2023 edition) and considering that the present claim was lodged
on 10 May 2023, the March 2023 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
24. The 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 TMS.
c. Merits of the dispute
25. The 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 he will refer only to the facts, arguments, and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
pg. 8
REF. FPSD-10189
26. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that it concerns the justice of the early termination of the
contract by the Claimant due to overdue payables and in accordance with art. 14bis of the
Regulations.
27. In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled. In doing so, the Single Judge underlined that the
Respondent failed to present its reply to the claim of the Claimant, and therefore his
decision would be made on the basis of the documentation on file, that is, the
argumentation and evidence exclusively filed by the Claimant, in line with article 14 par. 1
of the Procedural Rules.
28. The Single Judge then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails 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 the 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 obligations.
29. With the above in mind, the Single Judge observed that the Claimant provided written
evidence of having put the Respondent in default on 21 Abril 2023, whereby he expressly
mentioned that in the event the club failed to pay the amount requested within the
following 15 days, the contract would be deemed terminated.
30. Likewise, the Single Judge noted that the Claimant claims not having received his
remuneration corresponding to the balance of the advance payment and the salaries
between January 2023 and March 2023 (i.e., more than two monthly salaries).
31. In parallel, the Single Judge determined that in the case at hand the Respondent bore the
burden of proving that it indeed complied with the financial terms of the contract
concluded between the parties. Conversely, the Single Judge outlined that despite having
exchanged communications with the Claimant prior to commencement of the proceedings,
the Respondent failed to produce any evidence to its end, therefore, to demonstrate that
it had complied with its financial obligations.
32. The above suffices to confirm, in the Single Judge’s view, that the Claimant de facto
terminated the contract on 6 May 2023 with just cause based on art. 14bis of the
Regulations.
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.
pg. 9
REF. FPSD-10189
34. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant amounts to USD 15,837: USD
3,837 as the balance of the signature bonus and USD 12,000 as salaries between January
2023, March 2023, and April 2023. Regarding the latter, the Single Judge clarified that the
salary of April 2023 was also factored as part of the outstanding remuneration insofar as
at the time of the termination the player had already rendered services for the entire
month.
35. Equally, with regards to the league title winning bonus of USD 5,000, the Single Judge
observed that (i) the Claimant’s request is contractually based; (ii) the Claimant provided
evidence that the Respondent’s team indeed won the 2022/2023 national league; and (iii)
both the request and the evidence on file were not challenged by the Respondent.
Consequently, the Single Judge concluded that the Claimant is also entitled to USD 5,000.
36. 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
abovementioned amounts, which were outstanding under the contract at the moment of
the termination, i.e., USD 20,837.
37. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Single Judge decided to award the
Claimant interest at the rate of 5% p.a. as follows:
-
On the amount of USD 3,837 as from 1 December 2022 until the date of effective
payment;
On the amount of USD 3,000 as from 26 January 2023 until the date of effective
payment;
On the amount of USD 3,000 as from 1 March 2023 until the date of effective
payment;
On the amount of USD 3,000 as from 1 April 2023 until the date of effective payment;
On the amount of USD 3,000 as from 1 May 2023 until the date of effective payment;
On the amount of USD 5,000 as from 2 May 2023 until the date of effective payment.
38. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club. 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.
pg. 10
REF. FPSD-10189
39. 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.
40. 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.
41. 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 Single Judge
concluded that the amount of USD 3,000 serves as the basis for the determination of the
amount of compensation for breach of contract (i.e., the salary of May 2023).
42. 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 Single Judge 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.
43. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract, hence failed to mitigate his damages. Consequently,
the Single Judge also decided that no additional compensation should be awarded in the
case at hand in line with art. 17, par. 1, lit. ii) of the Regulations.
44. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the player would in principle
be entitled to USD 3,000 as compensation for breach of contract, which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
45. Notwithstanding the above, the Single Judge acknowledged that in his claim, the player
requested to be awarded USD 4,424 as compensation for breach of contract,
corresponding to the residual value of the contract. Out of this amount, USD 3,000
consisted of the salary of April 2023, already factored as part of the outstanding
remuneration (cf. § 34, supra). Consequently, the Single Judge concluded that he was only
pg. 11
REF. FPSD-10189
in a position to award the player the balance of USD 1,424 (i.e., 4,424 minus USD 3,000), as
claimed, under penalty of incurring in a violation of the principle of ne ultra petita.
46. Lastly, taking into consideration the player’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Single Judge decided to award the player
interest on said compensation at the rate of 5% p.a. as of 6 May 2023 until the date of
effective payment.
iii. Compliance with monetary decisions
47. 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
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.
48. 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.
49. 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.
50. 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.
51. 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
52. 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. 12
REF. FPSD-10189
53. 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.
54. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 13
REF. FPSD-10189
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ahmad Elias Ahmad Ali, is partially accepted.
2.
The Respondent, Jabal AL Mukabeer Club, must pay to the Claimant the following amounts:
- USD 3,837 as outstanding remuneration plus 5% interest p.a. as from 1 December 2022
until the date of effective payment;
- USD 3,000 as outstanding remuneration plus 5% interest p.a. as from 26 January 2023
until the date of effective payment;
- USD 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2023
until the date of effective payment;
- USD 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2023 until
the date of effective payment;
- USD 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2023 until
the date of effective payment;
- USD 5,000 as outstanding remuneration plus 5% interest p.a. as from 2 May 2023 until
the date of effective payment;
- USD 1,424 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 6 May 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. 14
REF. FPSD-10189
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. 15
REF. FPSD-10189
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 | [email protected] | T: +41 (0)43 222 7777
pg. 16