Dispute Resolution Chamber
Texto da decisão
REF 20-01600 / FPSD-313
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021
regarding an employment-related dispute concerning the player Ahmed Akaichi
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT:
Ahmed Akaichi, Tunisia
Represented by Malek Lamloum
RESPONDENT:
Al Ahli SC, Qatar
Represented by Nilo Effori and Ms. Elizabeth Soutter
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I.
FACTS OF THE CASE
1.
On 1 July 2020, the Tunisian player, Ahmed Akaichi (hereinafter: Claimant), and the Qatari
club, Al Ahli SC (hereinafter: Respondent) signed an employment contract valid as from the
same date until 30 June 2021.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia:
3.
A fixed monthly salary of USD (United States Dollars) 53,333.33
A monthly house allowance amounting to USD 3,000
A monthly transportation allowance amounting to USD 1,000
6 flight tickets, each valued USD 12,000
Besides the above, art. 10 par. 4 and par.5 of the employment contract, stipulated that:
•
4) “If the Club terminates the contract without having just cause, the Club shall pay
to the Player compensation equal to the total amount of: only one-month salary”.
•
5) “If the Player terminates the contract without having just cause, the Player shall
pay to the Club compensation equal to the total amount of: only one-month salary”.
4.
Furthermore, according to art. 14 par. 2 of the contract: “any dispute between the
[Respondent] and the [Claimant] arisen in connection with the present contract shall be
submitted to the exclusive jurisdiction of Qatar Sports Arbitration Tribunal (QSAT), if
operational, which shall be settled in accordance with the QSAT procedural rules”.
5.
Moreover, the same art 14, under par. 3, provides that: “as a transitionary rule and as long
as the QSAT is not yet operational, the QFA Dispute Resolution Chamber (DRC), if
established, shall have the exclusive jurisdiction for any disputes related to this contract.
Subsidiary and as long as the QFA DRC has not yet been established, FIFA shall hear
employment-related disputes related to this contract in accordance with the relevant FIFA
regulations governing this matter”.
6.
By correspondence dated 18 August 2020, the Claimant sent a reminder to the Respondent
concerning the payment of the salary of July as well as of the allowances and flight tickets
stipulated under the employment contract, for a total value of USD 69,333.33
7.
On 19 August 2020, the Respondent notified the Claimant of the unilateral termination of
the employment contract.
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8.
On the same date, the Claimant replied to the Respondent’s notification invoking an unjust
breach of the employment contract by the latter and arguing that the Club would have to
pay a compensation corresponding to the total residual value of the employment contract,
including the related allowances and flight tickets.
9.
On 20 August.2020, the Respondent sent a letter to the Claimant, inviting the latter to go
to the Club’s headquarters in order to sign the unilateral termination of the employment
contract.
10.
Contextually, the Respondent proceeded to pay the Claimant the amount of USD
58,305.14 as corresponding amount for the monthly salary of July in addition to the
housing and transportation allowances.
11.
By letter sent on the same date, the Claimant rejected the Respondent’s request and
demanded that the Club paid the entire yearly salary as well as all the relevant agreed
allowances.
12.
On 24 August 2020, the Respondent informed the Claimant to have started the procedure
for the unilateral termination of the employment contract without the Player.
13.
On the same date, the Claimant sent another reminder to the Respondent in order to
request once again the payment of the entire residual value of the employment contract as
compensation from the latter.
14.
On 17 September 2020, the Respondent paid to the Claimant USD 36,917.42 as pro-rata
for the salary of August, namely until the date of termination (i.e. 19 August 2020).
15.
On 23 September 2020, the Respondent paid to the Claimant USD 53,305.41 as
compensation for the unilateral termination of the employment contract, namely
corresponding to one-month salary.
16.
On 22 October 2020, the Claimant signed a contract as professional player with Kuwait
Sporting Club, to be valid from 28 October 2020 until 30 June 2021.
17.
The monthly salary under the new employment contract was fixed in USD 33,500.00, for a
total value of USD 270,000.00.
II.
PROCEEDINGS BEFORE FIFA
18.
On 10 September 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
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a.
The claim of the Claimant
19.
According to the Claimant, the Respondent had terminated the employment contract
without just cause and as a result the payment of all the agreed salaries and allowances in
their entirety remained outstanding.
20.
The Claimant acknowledged payment by the Respondent of the amounts of USD 36,917.42
on 17 September 2020 and USD 53,305.41 on 23 September 2020.
21.
Notwithstanding the above, the requests for relief of the Claimant, were the following:
USD 581,694,86 as residual salaries from August 2020 until June 2021
USD 33,000 as housing allowances due from August 2020 until June 2021
USD 11,000 as transportation allowances due from August 2020 until June 2021
5% per annum interest over the above amounts, as of the date of the claim until
the date of effective payment.
b.
Position of the Respondent
22.
In its reply, the Respondent maintained that the FIFA DRC lacks jurisdiction to hear the
present matter due to art. 14 par. 2 of the employment contract, which devolves such
competence to the Qatar Sports Arbitration Tribunal (hereinafter: QSAT)
23.
According to the Respondent, in fact, such contractual clause is clear enough in envisaging
the exclusive jurisdiction of the QSAT.
24.
In this context, the Respondent reported that the QSAT has become officially operational
as of 18 August 2019 and it would allegedly meet all the criteria requested by the FIFA
Regulations in order to be considered as a fully independent tribunal which guarantees fair
proceedings and respects the principle of equal representation of players and clubs.
25.
In support of the above, the Respondent submitted copy of the Qatar Sports Arbitration
Foundation Statutes as well as of the Rules Governing the QSAT.
26.
In a subsidiary way, as to the substance of the case, the Respondent argued that, contrarily
to what was sustained by the Claimant, the Club has respected the principle of pacta sunt
servanda, having paid both, the Claimant’s salary until the termination of contract and the
correct compensation as stipulated under art. 10 par. 4 of the employment contract.
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27.
In view of the above, and in consideration of the fact that the parties fully and freely agreed
on such contractual terms, the Respondent is of the opinion that said termination clause
shall be deemed valid, as it is proportionate, equal and reasonable.
28.
Therefore, the Respondent demanded that the claim lodged by the Claimant shall be
rejected, as the former allegedly complied with its financial obligations towards the Player
and paid the entire compensation stipulated for the unilateral termination of the
employment contract.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
29.
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 27 October 2020 and submitted
for decision on 6 May 2021. Taking into account the wording of art. 21 of the January 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the June 2020 edition of
the Procedural Rules is applicable to the matter at hand.
30.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
an Tunisian player and a Qatari club.
31.
However the Chamber acknowledged that the Respondent, in view of art. 14 of the
employment contract, contested the competence of FIFA’s deciding bodies as, according to
the Respondent, the present matter shall be adjudicated by the Qatar Sports Arbitration
Tribunal (QSAT).
32.
With the aforementioned considerations in mind, and prior to entering into the analysis of
its competence, the Chamber wished to recall that in accordance with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, without prejudice to the right of any
player or club to seek redress before a civil court for employment-related disputes, it is
competent to deal with a matter such as the one at hand, unless an independent arbitration
tribunal, guaranteeing fair proceedings and respecting the principle of equal representation
of players and clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement.
33.
In relation to the above, the Chamber also deemed it vital to outline that one of the basic
conditions that needs to be met in order to establish that another organ than the FIFA DRC
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is competent to settle an employment-related dispute between a club and a player of an
international dimension, is that the jurisdiction of the relevant national arbitration tribunal
or national court derives from a clear reference in the employment contract.
34.
Therefore, while analysing whether it was competent to adjudicate the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost, analyse whether
the employment contract at the basis of the present dispute actually contained a clear and
exclusive jurisdiction clause in favour of the QSAT.
35.
In this respect, and regardless of the fact that the relevant employment contract contains a
reference to dispute resolution at national level, it shall be noted that the relevant article is
drafted in a rather unclear manner, in the sense that, it first refers to a specific tribunal (i.e.
QSAT) and then it stipulates that in case neither the QSAT nor the Qatari NDRC were
operational or established, FIFA shall be competent to deal in employment-related disputes.
36.
In light of the above, established that the exclusive jurisdiction of QSAT does not appear to
derive from a clear reference in the employment contract, the DRC acknowledged its
competence over the matter at hand.
37.
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 Player (edition February 2021), and
considering that the present claim was lodged on 27 October 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
38.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
39.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
40.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC emphasised that in the following considerations
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it will refer only to the facts, arguments and documentary evidence, which it considered
pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
41.
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 financial consequences
deriving from the unilateral termination of the employment contract by hand of the
Respondent on 19 August 2020.
42.
In particular, the Chamber observed that while the Claimant is of the opinion of being
entitled to a compensation corresponding to the entire residual value of the employment
contract because of the unjust termination by hand of the Respondent, the latter on the
contrary invoked the applicability of art. 10 par. 4 of the employment contract in order to
extinguish the entirety of its financial obligations toward the Claimant.
43.
Furthermore, the DRC noted that the respondent produced evidence of payment of the
outstanding remunerations due until the date of termination (i.e. 19 August 2020) and that
the Claimant acknowledged to have received the amount of USD 53,305.41 from the
Respondent on 23 September 2020, as compensation for the unilateral termination of the
employment contract, namely corresponding to one-month salary.
44.
In this context, the Chamber concluded that no outstanding sums are persisting and it
consequently acknowledged that its task was therefore to establish whether the payment
by the Respondent of the amount of USD 53,305.41, shall be deemed adequate and
proportionate in casu as compensation for the unilateral termination of the employment
contract without just cause.
45.
In this regard, the Chamber recalled that the aforementioned art. 10 par. 4 states the
following:
•
4) “If the Club terminates the contract without having just cause, the Club shall
pay to the Player compensation equal to the total amount of: only one-month
salary”.
46.
Moreover, the Chamber noted that the exact same amount would have to be paid by the
Player in case of unilateral termination of the contract without just cause by the latter.
47.
In this context, the DRC observed also that the total duration of the employment contract
was of 12 month and that said termination occurred about 49 days after the starting date
of the labour relationship.
48.
With all the above in mind, the Chamber assessed that in casu, the amount of USD
53,305.41 appears objectively as a proportionate, reasonable and equal sum for
compensation, as such provision was freely agreed upon between the parties.
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ii. Consequences
49.
Having stated the above, the members of the Chamber concluded that the Respondent has
proven having fully paid the compensation due to the Claimant under clause 10 par.4 of
the employment agreement and that said compensation shall be deemed sufficient in order
to extinguish its financial liabilities toward the latter.
50.
Therefore, the present claim shall be rejected.
51.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
52.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
53.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE Dispute Resolution Chamber
1.
The claim of the Claimant, Ahmed Akaichi, is admissible.
2.
The claim of the Claimant rejected.
3. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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
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