Dispute Resolution Chamber
Texto da decisão
REF 21-00088
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player Mahmoud Altayeb Meeftaf Alshilwi
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
CLAIMANT / COUNTER-RESPONDENT:
Mahmoud Altayeb Meeftaf Alshilwi, Libya
RESPONDENT / COUNTER-CLAIMANT:
Stade Tunisien, Tunisia
INTERVENING PARTY:
Al Hilal, Libya
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REF 21-00088
I.
Facts
1. On 15 September 2020, the parties concluded an employment contract, valid as from the date
of signature until 30 June 2023.
2. According to the contract, the player was entitled to the following:
- 2020/2021: TND (Tunisian Dinars) 2,500 per month.
- 2021/2022: TND 3,000 per month
- 2022/ 2023: TND 3,500 per month
3. In addition, the player was entitled to a “prime de rendement” as follows:
- Season 2020/2021: TND 35,000
- Season 2021/2022: TND 50,000
- Season 2022/2023: TND 60,000
4. On 31 October 2020, M Amor Mejri, Court Clerk, issued a document declaring that the player
was absent since 14 October 2020 until 30 October 2020.
5. On 3 November 2020, M Amor Mejri, Court Clerk, issued a document declaring that the player
was absent as indicated in the previous notice.
6. The player informed FIFA that he concluded a contract with the Libyan club, Al Hilall SCSC,
valid as from 19 January 2021 until 18 January 2025, for a salary of LYD (Libyan Dinar) 70 000
“for the entire period of the contract”
7. On 11 January 2021, the Claimant lodged a claim before FIFA for outstanding remuneration
and breach of contract without just cause, and requested the payment of the total amount of
TND 253,000, detailed as follows:
- TND 30,000 as salaries for the first season,
- TND 36,000, as salaries for the second season;
- TND 42,000, as salaries for the third season;
- TND 35,000 as “prime de rendement” for the first season;
- TND 50,000 as “prime de rendement” for the second season;
- TND 60,000 as “prime de rendement” for the first season;
8. According to the player, “to his surprise, when he came to the training sessions, the player was
informed that he could not attend and that his contract was non-existent”
9. The player therefore requested to sanction the club for unilateral breach of the contract “and
also for its disloyal behaviour, which is contrary to sporting principles and clearly lacks
integrity.”
10. On 8 February 2021, the club replied to the claim and simultaneously lodged a counterclaim.
11. In the club explained that “the player started training with the club's senior team for a month”
but that “suddenly he deserted the training without any good reason and even left the territory
of Tunisia without informing the club.”
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12. The club submitted a series of notary reports in support of its allegations.
13. The club stated that it paid the amount of TND 10,000 on 11 September 2020 a “prime de
rendement”, and attached the following document as evidence:
14. In view of the above, the club considered that the player has engaged in abusive behaviour in
order to terminate his contract.
15. As a result, the club requested the payment of TND 253,000 “or its amount in dollars” as
compensation, as well as the imposition of sporting sanctions against the player.
16. In his replica, the player considered that the club tries to confuse the Chamber as to his alleged
absences.
17. In this respect, the player argued that it was the club who refused him to train on the grounds
that he has no contract and that he would have failed a technical test.
18. The player refused that the letter of 3 November 2020 was sent to a valid address.
19. In addition, the player underlined that the club did not register his contract with the Tunisian
Football Federation.
20. The player insisted in his initial petition.
21. According to the club, the registration of the contract required to comply with art. 33 of the
Regulations of the Tunisian FA and, in particular, had to be supplemented with a file including,
inter alia, an insurance and other mandatory documents.
22. However, according to the club since the player refused to join the club, his file could not be
submitted and the club could not request the international transfer certificate from his former
club.
23. The club argued that the player did not even send a notice to the club to allow him to return
to the senior squad. On the contrary, according to the club, he left the Tunisian territory without
notice and without notifying the club
24. Despite being invited to do so, Al Hilal failed to provide its comments.
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II. Considerations of the Dispute Resolution Chamber
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.
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 aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs.
3. In continuation, the Dispute Resolution Chamber analysed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering the date when the claim was lodged, the February 2021 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at
hand.
4. With the above having been established, the Dispute Resolution Chamber entered into
the substance of the matter. In doing so, it started to acknowledge the facts of the case
as well as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
5. In this respect, the Chamber noted that, on 15 September 2020, the parties concluded an
employment contract, valid as from the date of signature until 30 June 2023.
6. Subsequently, the Chamber noted that the player lodged a claim against Stade Tunisien
for outstanding remuneration and breach of contract without just cause.
7. On the other hand, the Chamber took Stade Tunisien’s position, according to which the
player has engaged in abusive behaviour in order to terminate his contract. The Chamber
observed that Stade Tunisien lodged a counterclaim against the player.
8. In view of the foregoing, the Chamber understands that the contract between the parties
was validly concluded.
9. In this context, the Chamber also noted that neither party formally terminated the
contract.
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10. Similarly, the Chamber emphasised that, according to its established jurisprudence, only
when there are objective criteria that do not allow a reasonable expectation of a
continued employment relationship between the employer and the employee, a contract
can be terminated prematurely.
11. Therefore, if there are more lenient measures that can be taken to ensure the employer's
performance of the employee's contractual obligations, such measures must be taken
before terminating an employment contract. The premature termination of an
employment contract can only be ultima ratio measure.
12. In view of the evidence provided by the parties, it cannot be established beyond
reasonable doubt which party was in breach. In any event, the Chamber considered that
the player should have formally notified the club, by way of a formal notice, if he felt
that the club had failed to comply with the contract, in accordance with the ultima ratio
principle.
13. Therefore, the Chamber considered that, in this context, both parties expressed their lack
of interest in continuing the contractual relationship and that, consequently, the contract
was terminated by mutual tacit agreement of both parties.
14. Nevertheless, the Chamber noted that the player trained with the club for one month,
and that he received the amount of TND 10,000 corresponding to the “prime de
rendement”.
15. In this respect, the Chamber understood that, in view of the aforementioned situation,
the player is entitled to one monthly salary (i.e. TND 2,500), but that he should reimburse
the balance of the “prime de rendement”.
16. As a result, the Chamber established that the player has to reimburse to Stade Tunisien,
the amount of TND 7,500 (i.e. 10,000-2,500).
17. The Chamber concluded its deliberations by rejecting all further claims of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of Mr Mahmoud Altayeb Meeftaf Alshilwi, is rejected.
2.
The counterclaim of Stade Tunisien is partially accepted.
3.
Mr Mahmoud Altayeb Meeftaf Alshilwi has to reimburse to Stade Tunisien, the amount
of TND 7,500.
4.
Any further claims of the parties are rejected.
5.
Stade Tunisien is directed to immediately and directly inform Mr Mahmoud Altayeb
Meeftaf Alshilwi of the relevant bank account to which the latter must pay the due
amount.
6.
Mr Mahmoud Altayeb Meeftaf Alshilwi shall provide evidence of payment of the due
amount in accordance with this decision to [email protected], duly translated, if
applicable, into one of the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by Mr
Mahmoud Altayeb Meeftaf Alshilwi within 45 days, as from the notification by Stade
Tunisien of the relevant bank details, the following consequences shall arise:
1. Mr Mahmoud Altayeb Meeftaf Alshilwi shall be restricted on playing in official
matches up until the due amounts are paid. The overall maximum duration of the
restriction, including possible sporting sanctions, shall be of six months on playing
in official matches. The aforementioned ban mentioned will be lifted immediately
and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the
end of the restriction period, the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee.
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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