Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 23 April 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Jos é Luis Andrade (Portugal), member
S tijn Boey kens (Belgium ), member
on the claim presented by the player,
Moham m ed M M Balah, Palestine
as Claimant
against the club,
Club S aham , Oman
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 25 July 2019, the Palestinian player, Mohammed M M Balah (hereinafter: the
player or the Claimant) and the club from Oman, Club Saham (hereinafter: the club
or the Respondent) (hereinafter jointly referred to as the parties), signed an
employment contract (hereinafter: the contract) valid as from 1 August 2019 until 30
April 2020.
2.
In this respect, the contract provided, inter alia, the following financial conditions :
“3.[The player] shall get a signing fee (10.000$) after arriving in the Sultanate and
after [the club] receive international transfer certificate and pass medical checkup
and Technical and completing the registration in the Omani Football Association.
4.[The player] shall get amount of ($ 3.500) as basic salary for each month during
contract period.
5.[The player] shall get a ticket from his country to Muscat and return.
6.[The club] will provide [the player] accommodation in the duration contract
period”.
3.
On 3 November 2019, the Claimant put the Respondent in default arguing that he
did not receive his advance payment and the salaries of August to October 2019,
thereby granting the Respondent 15 days to pay.
4.
On 16 January 2020, the Claimant unilaterally terminated the contract arguing that
despite his default notice, no amount had been paid to him.
5.
On the same day, i.e. 16 January 2020, the Claimant lodged a claim against the
Respondent in front of FIFA for outstanding remuneration and compensation for
breach of the contract, requesting the total amount of USD 36,600, corresponding
to :
i. USD 5,100 as part of the sign-on fee;
ii. USD 31,500 as the monthly salaries as from August 2019 until April
2020.
6.
In his claim, the Claimant sustained that he had only been paid part of the sign-on
fee in the amount of Omani Rial (OMR) 1,900 (approx. USD 4,900).
7.
In this respect, the Claimant also held that he did not receive his salaries for the
period as from August until December 2019.
Player Mohammed M M Balah, Palestine / Club Saham, Oman
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8.
The Claimant further held that he was ”subject to pressure by the head of the
management and some management member”, arguing that he was not authorized
to attend trainings.
9.
In addition, the Claimant sustained that “the Omani football Federation is aware of
this case, as I have not received any support from them, I would open another case”.
10. In reply to the claim, the Respondent contested FIFA’s competence do adjudicate the
present matter as to the substance.
11. In this respect, the Respondent explained that the Claimant had already resorted to
the Dispute Resolution Chamber of the Oman Football Association (hereinafter:
Oman FA) in his claim of 29 December 2019 based on the same contract as the one
at the basis of the present claim and for similar purposes, i.e. payment of alleged
outstanding dues.
12. In continuation, the Respondent provided a decision rendered by said body on 5
February 2020 which suggested that the Respondent also requested monies from the
Claimant and finally concluded to the closure of the case considering that “it was
proven that the player waived the case” by its letter dated 15 January 2020.
13. Consequently, the Respondent held that that the claim should be rejected.
14. In respect to the above, despite having not been invited to do so, the Claimant
explained that he had been informed on 8 March 2020 that the Respondent had
initiated proceedings against him in front of the Omani Football Federation. In this
respect, the Claimant alleged that he contested this as the present case is ongoing in
front of FIFA, however allegedly to no avail.
15. Furthermore, the Claimant acknowledged having initially resorted to the Oman
NDRC, however he contested the Respondent’s reply, recalled that his case was not
handled impartially in front of the Omani NDRC and argued that he “had only one
option, which is to resort to FIFA to apply his complaint about everything happened
and to save the time. And to stop abuse from the club and Omani FA”. In addition,
the Claimant held that he withdrew his complaint in front of the Oman NDRC prior
to any decision being rendered by said body, stating that he did not waive his rights
to claim his dues and added on top of his initial claim, inter alia, the following :
“- Obligating [the club] to pay $ 100,000 as compensation to the player against of
psychological, material harms and damages to its reputation him;
- Obligating [the club] to pay the full amount of the contract value between the
player and [the club];
Player Mohammed M M Balah, Palestine / Club Saham, Oman
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- Obligating Omani Football Association to pay an amount $ 100,000 as
compensation to the player against the provisions and decisions issued by the same
causing damages to its reputation, in addition to the above mentioned;
- FIFA has the right to impose maximum punishment on the above mentioned patties
[the club] + Omani Football Association”.
16. Finally, the Claimant explained that he signed an employment contract with the
Omani club, Al-Suwaiq, on 26 January 2020, valid as from the date of signature until
26 April 2020, for a total value of USD 21,000.
II. Cons iderations of the Dis pute Res olution Cham ber
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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 16 January
2020. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (2019 edition; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (March 2020
edition), the Dispute Resolution Chamber would, in principle, be competent to deal
with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Palestinian player and an Omani club.
3.
However, the Chamber noted that the Claimant first lodged a claim before the Oman
FA on 29 December 2019, by means of which he requested to be awarded
outstanding dues in accordance with the contract.
4.
In this regard, the Chamber took note that, on 5 February 2020, the bodies of the
Dispute Resolution Chamber of the Oman FA rendered a decision by means of which
said body acknowledged that the Claimant waived his complaint in his letter dated
15 January 2020.
5.
On account of the above, the members of the DRC established that they had to first
analyse the competence of the DRC, considering the existence of a decision issued
by the Oman FA regarding the contractual documents on the basis of the present
dispute.
6.
In this respect, the Chamber took note that, according to the Claimant, once he
resorted to the to the Oman FA, his case was not handled impartially in front of the
Player Mohammed M M Balah, Palestine / Club Saham, Oman
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relevant body and, consequently, his only option left was to resort to FIFA in order,
inter alia, to “stop abuse from the club and Omani FA “.
7.
In addition, the DRC recalled that the Claimant held that he withdrew his complaint
in front of the Oman FA prior to any decision being rendered by the relevant body,
which meant, in his opinion, that he did not waive his rights to claim his dues and
added on top of his initial claim, additional requests as described in point I./15.
above.
8.
With the above in mind, the DRC also underlined that, in the Claimant’s view, he had
been informed on 8 March 2020 that the Respondent had initiated proceedings
against him in front of the Oman FA and that he contested this as the present case
was ongoing in front of FIFA, however allegedly to no avail.
9.
Subsequently, the Chamber recalled that the Claimant lodged his claim in front of
FIFA on 16 January 2020, which is also the date on which he unilaterally terminated
the contract, i.e. one day after having waived his complaint lodged in front of the
Oman FA as per his letter to said body dated 15 January 2020.
10. Finally, the DRC recalled that on 5 February 2020, the bodies of the Dispute
Resolution Chamber of the Oman FA rendered a decision by means of which said
body acknowledged that the Claimant waived his complaint in his letter dated 15
January 2020, said decision having as well not been apparently appealed.
11. At this point, the DRC deemed it important to underline that in the spirit of the
applicable regulations, a player – or a club – who actively decides to bring forward a
dispute before a specific body among a Football Federation, rather than making use
of the alternative dispute resolution process proposed within the legal framework
of FIFA, must demonstrate consistency in relation to the choice of the course of
action.
12. The DRC further held that it therefore cannot condone the attitude of a player or a
club who has specifically decided to submit a labour dispute to the aforementioned
body, and has subsequently decided to submit the dispute between the same parties,
based on the same legal framework binding the same parties, i.e. the employment
contract, to the FIFA Dispute Resolution Chamber; the same is to be noted if the
party submits a claim before the FIFA DRC and thereafter seeks to lodge the same
claim in front of the national body.
13. In this respect, the DRC’s contention is that a party who chooses a certain course of
legal remedy may not then decide to change the legal forum of the dispute, as this
would jeopardise the credibility of the sporting dispute resolution system. This being
said, the Chamber held that the Claimant’s claim in front of FIFA was the
continuation of his claim lodged in front of the Oman FA.
Player Mohammed M M Balah, Palestine / Club Saham, Oman
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14. Having all the above in mind, the DRC deemed that prior to lodge his claim in front
of the Omani bodies in December 2019, the player had the choice in front of which
body he wished to lodge his initial claim, this considering the consequences deriving
from said choice.
15. As such and in consideration of all the above, the members of the DRC deemed that,
from his actions, it appeared that the Claimant changed his mind during the ongoing
proceedings in front of the Oman FA and, consequently, that he tried to be awarded
more and/or obtain a better outcome/compensation before the FIFA DRC after
having waived his claim in front of the Oman NDRC on 15 January 2020, considering
that said proceedings were not partial and equilibrated.
16. In this context, a decision having been rendered by the Oman FA which has
apparently not been appealed, the Chamber deemed that by acting in such a way,
the Claimant himself elaborated and developed a strategy falling within the
framework of the principle of “Forum Shopping”.
17. Consequently, by acting as the Claimant did, the Chamber came to the unanimous
conclusion that in application of the principle of Electa una via, non datur recursus
ad alteram, the Claimant’s way of action could not be retained as consistent.
18. All the above led the Dispute Resolution Chamber to conclude that the claim of the
player was inadmissible.
Player Mohammed M M Balah, Palestine / Club Saham, Oman
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III. Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Mohammed M M Balah, is inadmissible.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, 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 Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
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). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Mohammed M M Balah, Palestine / Club Saham, Oman
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