Labour Disputes
Texto da decisão
FPSD-2719
Decision of the
Dispute Resolution Chamber
passed on 14 October 2021
regarding an employment-related dispute concerning the player El Fardou
Ben Mohamed
BY:
Frans de Weger (Netherlands), Chairperson
Roy Vermeer (Netherlands), member
Jose Luis Andrade (Portugal), member
CLAIMANT :
El Fardo Ben Mohamed, France/Comoros
Represented by Mr Pierre Ducret
RESPONDENT:
Al Wahda, United Arab Emirates
Represented by Mr Luigi Primicerio
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I.
Facts of the case
1. On 13 January 2018, the French/Comorian player, El Fardou Ben Mohamed (hereinafter: the
Claimant) and the Serbian club FK Crevna Zvezda (hereinafter: the former club) concluded an
employment contract valid from 15 January 2018 until 30 June 2020.
2. On 15 August 2019, the Emirati club, Al Wahda FC (hereinafter: the Respondent) expressed
its interest in signing the Claimant to his former club.
3. On 20 August 2019, the Respondent sent a letter to the Claimant by means of which it
expressed its interest in “obtaining [the player’s] services as a professional football player (…)”.
Said letter was signed by the CEO of the Respondent but did not include a designated space
for the Claimant to sign for acceptance (hereinafter: ‘the contract offer’).
4. In accordance with article 1 of the contract offer, the Claimant was entitled to the following
amounts:
o EUR 1,500,000 for the first year;
o EUR 1,500,000 for the second year;
o EUR 1,500,000 in the event that the parties agree to extend the contract for a third year.
5. Article 2 of the contract offer provided for a 20% as advance payment on signing the contract
to be deducted from the Claimant’s salary.
6. Additionally, article 3 of the contract offer provided for bonuses due to the Claimant as
follows:
-
USD 100,000 for H.H. the President's Cup;
USD 100,000 for UAE Professional League;
USD 100,000 for AFC Champions League;
USD 20,000 Scores more than (15) total goals per season
USD 35,000 Scores (25) total goals and more per season
USD 10,000 assists more than (15) total goals per season
USD 20,000 assists more than (25) total goals per season.
7. Article 4 of the contract offer provided that “The Club will provide accommodation, car,
business class air tickets, medical facilities, school fees and other benefits as per the Club policy
and the same shall be mentioned exclusively in the final contract”.
8. Article 5 of the contract offer stated that “A medical examination shall be conducted in Abu
Dhabi or as may be decided by Al Wahda Club FC, declaring you fit and able to play
professional football”.
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9. Article 6 of the contract offer stated that “A formal contract shall be made between Al Wahda
Club FC and you as a player, if you accept our offer, reach an agreement with your club and
successfully pass the required medical examination”.
10. Finally, the contract offer stated that “What has been mentioned above is only an offer (and
not financially binding in its own right), merely for the purpose of obtaining your initial interest
to proceed further to make a formal contract, if both parties hereby agree upon and there is
no objection or claim whatsoever from your present club to affect the transfer.
This offer is based on the understanding that you will settle any contractual obligations with
your present club prior to signing an employment contract with Al Wahda Club FC”.
11. On an unspecified date, the Claimant signed the contract offer but made a “counteroffer” by
amending several provisions of the Respondent’s proposal, handwriting his comments on the
document sent by the Respondent.
12. In the meantime, on 25 August 2019, the Respondent and the Claimant’s former club signed
a transfer agreement for the permanent transfer of the Claimant for EUR 2,000,000.
13. Article 7 of the transfer agreement states that “This agreement is conditional upon the player
passing a medical examination to the sole satisfaction of Al Wahda and the player agrees to
the terms and conditions of his professional contract with Al Wahda”.
14. On an unspecified date, the Respondent sent a draft employment contract to the Claimant.
This draft employment contract did not contain a signature and/or date, and some parts of
the draft employment contract, such as the address of the Claimant, were still blank.
Furthermore, Article 13 of the draft employment contract stated that “[t]his contract shall
come into effect from the date of its signature by both parties. In witness hereof, both parties
and the witnesses have signed hereunder on the day and at the date mentioned above.”
15. On 29 August 2019, the Claimant proposed several amendments to the draft employment
contract via email, which amendments the Respondent agreed to (on the same date), stating
“Thank you for your email of today and we will be happy to have you in our team. In respect
to the remarks contained in your above email, we are pleased to inform you of our approval
on all amendments. The (…) the amended contract will be ready for signature upon your
arrival in Abu Dhabi”.
16. On 31 August 2019, the Claimant and his former club mutually terminated the contract
between them.
17. On 2 September 2019, the Respondent’s doctor issued a medical report stating that “because
of medical findings, he needs a special treatment and rehabilitation for 6-8 weeks till he
reaches the level of non-swollen knee and enough strength, then he needs to be checked
again”.
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18. On 6 September 2019, the Respondent sent a letter to the Claimant’s former club, stating that
in accordance with article 7 of the transfer agreement, the contract was conditional on the
player passing his medical exams and that as a result it would not sign the Claimant.
19. On 8 September 2019, the Claimant was informed by the Respondent that as a result of his
unsatisfactory medical results, it would not sign a contract with him.
20. On 11 September 2019, the Respondent once again informed the Claimant’s former club that
the Claimant had allegedly "failed to pass the medical examination as his medical examination
had] failed to meet its satisfaction". According to the Respondent, the Claimant could
therefore not be registered with it.
21. On the same date, 11 September 2019, the Claimant’s former club disputed the allegations
of the Respondent, reminding it to comply with its contractual obligations.
22. On 12 September 2019, the Respondent denied any wrongdoing and stated that it had
refrained from signing the employment contract due to the medical status of the Claimant.
23. On 23 December 2019, a letter of formal notice was sent to the Respondent, in which the
Claimant claimed EUR 4,331,660 as compensation.
24. On 20 February 2020, the Respondent replied to the above default notice reminding the
Claimant that the parties had not entered into a formal binding contract, but that it had only
sent the Claimant an offer which was made in the framework of transfer negotiations with
him and his former club aimed at obtaining the Claimant’s “initial acceptance”.
25. On 13 March 2020, the Claimant and his former club signed a new employment contract valid
from 1 July 2020 to 30 June 2023.
II. Proceedings before FIFA
26. On 1 June 2021, 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
27. According to the Claimant, having done his medical tests with the Respondent, on 2
September 2019, he left Abu Dhabi to play two games for his national team in the context of
the African section of the 2022 FIFA World Cup qualification.
28. Immediately after his departure from Abu Dhabi, the Claimant submits that the Respondent
“suddenly pretended” that it was expecting the result of the medical examination and that
some minor points of the employment still needed to be discussed.
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29. According to the Claimant, these unsupported allegations were manifestly tainted with bad
faith, as he had successfully passed the medical examination and that it later turned out that
the Respondent was already in possession of the medical results.
30. Secondly, according to the Claimant, the Respondent had already confirmed – in writing –
that all contractual modifications requested by the Claimant were accepted and that no
additional discussion was therefore needed.
31. The Claimant adds that in reality, it emerged later that the Respondent was at the same time
negotiating the transfer of another forward player, Mr Carlos Daniel López Huesca (Carlitos).
32. The Claimant submits that at the time of the medical examination, he was in perfect physical
condition and was able to play professional football which is confirmed by a certificate issued
by the Medical Committee of the Comorian Football Federation. In this document, the
Claimant adds that Dr Soilihi Abdallah Boina certifies that he played the two games scheduled
on 6 and 10 September 2019 with his national team without any medical issues.
33. At this stage, the Claimant submits that despite attempts to make the Respondent to see
reason, it was very clear that it had no intention of complying with its obligations. The Claimant
adds that he had therefore no other option than to return to his former club in order to
mitigate his damages.
34. However, the Claimant adds that he was at that point no longer eligible to participate in the
UEFA Champions League as the deadline for the registration with UEFA had already elapsed
and that he was therefore deprived from the opportunity to play in the UEFA Champions
League (season 2019-2020), which has adversely affected his market value.
35. According to the Claimant despite his formal notice to the Respondent dated 23 December
2019, the Respondent denied any wrongdoing by arguing, in essence, that the parties did not
sign any employment agreement and that the Claimant failed to successfully pass the medical
examination which was a condition in order to sign a contract.
36. According to the Claimant, he underwent medical examinations to demonstrate his perfect
health, which resulted that he was fit to continue to participate in sports. Additionally, the
Claimant submits that he not only signed and accepted the offer but that he also met the
conditions in the contract offer.
37. In view of the above, the Claimant submits that the Respondent breached its obligation to
enter into contract with him and shall therefore pay compensation as the contract offer has
legal effect and is binding on the parties.
38. According to the Claimant, he was to receive the amount of EUR 1,500,000 per contract year
during seasons 2019-2020 and 2020-2021. In addition, the Claimant was to receive EUR
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1,800,000 in case of a third contractual year. The Claimant adds that in light of his
performances, one can reasonably assume that there would have been at least a 50% chance
that the contract would have been extended for a third contractual year. It results, according
to the Claimant that the total lost remuneration amounts to EUR 3,900,000 (EUR 1,500,000
+ EUR 1,500,000 + EUR 900,000).
39. Furthermore, according to the Claimant, the calculation of the compensation due in
accordance with article 17 RSTP follows the principle of the so-called "positive interest".
However, the Claimant adds that in the case at hand, justice and fairness require to depart
from a strict application of this principle. Indeed, because of the Respondent’s bad faith
behaviour, he was deprived of the opportunity to participate in the UEFA Champions League.
If the Respondent had not confirmed to his former club that it could issue an invoice for the
payment of the transfer fee, he would have been included in its list of players for the 20192020 UEFA Champions League.
40. According to the Claimant, he lost the opportunity to compete in this prestigious competition,
with the consequence that his market value was adversely affected and that the loss resulting
of this non-participation is estimated at EUR 1,000,000 by reference to the difference between
the salary received at his former club (i.e. EUR 568,328) and the salary offered by the
Respondent (i.e. EUR 1,500,000).
41. The Claimant adds that on 9 June 2019, his market value went from EUR 4,000,000 to EUR
3,000,000 as a result of the aborted transfer.
42. According to the Claimant, he mitigated his loss by returning to his former club. The salary
received from his former club during the 2019-2020 season (i.e. EUR 568,328) must therefore
be deducted from the compensation sought and that the salaries for 2020-2021, 2021-2022
seasons must also be deducted, i.e. EUR 718,000.
b. Position of the Respondent
43. The Respondent, in its reply, states that during the transfer window of the 2019/2020 season,
it had the intention to sign the Claimant and, therefore, started negotiations both with the
Claimant and his former club.
44. More precisely, on 15 August 2019, the Respondent submits that it contacted the Claimant’s
former club for the first time expressing its intention to sign the Claimant on a permanent
basis.
45. According to the Respondent, having received positive feedback, on 20 August 2019, it
submitted a proposal to the Claimant and the parties started negotiations. In parallel, on 26
and 27 August 2019, the two clubs entered into a transfer agreement for the definitive
transfer of the Claimant.
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46. The Respondent submits that as it always happens in football transactions, both the contract
offer and the transfer agreement were made conditional upon the positive outcome of the
medical examinations to be conducted on the Claimant in Abu Dhabi and that on 29 August
2019, it thus invited the Claimant to come to Abu Dhabi to assess his medical conditions
before signing the employment contract.
47. According to the Respondent, on 30 August 2019, the Claimant arrived in Abu Dhabi and on
the following day he underwent medical examinations at Seha Emirates Hospital with Dr.
Hesham Youseef Al Gazzar. On the same day, right after the medical examination and before
the outcome of the test was made available, the Claimant decided unilaterally to terminate his
employment agreement with his former club.
48. Likewise, before the outcome of the test was made available, the Claimant - on 2 September
2019 - left Abu Dhabi to join his national team for the FIFA World Cup qualifiers. On the same
day, the Respondent adds that it sent a letter to his former club informing them that the
Claimant "has arrived in our club in Abu Dhabi, conducted the medical test and we have been
waiting for the result".
49. The Respondent submits that the medical report was issued by the diagnostic centre and made
available to it on 2 September 2019, after that the letter to the Claimant’s former club was
sent and that the findings of the medical report were analysed with due care by the medical
staff of the Respondent.
50. According to the Respondent, the medical report revealed that the Claimant had pain in the
low back, in his knees, in his ankles and in the joints of his feet. The magnetic resonance
unveiled meniscal tear and anterior cruciate ligament partial tear, plus other significant issues.
The head of the medical unit reported the above to the management of the club, informing
them that the Claimant "needs a special treatment (. . .) and rehabilitation program for 6-8
weeks till he reaches the level of nonswollen knee and enough strength and then he needs
to be checked again".
51. In light of the findings of the Medical Report and Dr Caglar's opinion, on 6 September 2019,
after careful evaluation of the matter, the Respondent submits that its management decided
that it was not worth taking the risk of signing a player who featured significant risk factors
in relation to his health status. Accordingly, they informed his former club that "the player has
failed to pass the medical examination as his medical examination result has failed to meet our
satisfaction”. Accordingly, and referring again to art. 7 of the transfer agreement, which
mentioned that in case of failure to fulfil the above-mentioned conditions, the transfer
agreement shall not be enforced or executed and the Claimant shall not be registered.
52. The Respondent further adds that after informing his agent on the phone, on 8 September
2019, the Respondent notified directly to the Claimant - who was still with his national
representative team - that the result of the medical examination "was not satisfying to our
club as it showed some concerns, which could affect your medical status with the club
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accordingly, we hereby notify you that the club management decided that it will not be able
to complete the process and enter into employment relationship with you or sign an
employment contract".
53. With the above in mind, the Respondent submits that the Claimant’s claim is without merit
and that it hereby denies the whole claim.
54. On the non-fulfilment of the conditions set by the parties, the Respondent submits that it must
be noted that the contract offer expressly provided that the employment contract between
the parties was subject to the fulfilment of some conditions precedent, including the positive
outcome of the Claimant's medical examination (as it is standard practice in the football
industry). Therefore, the non-fulfilment of this condition precedent made the parties free from
the finalization of the employment agreement.
55. According to the Respondent, the Claimant acknowledged the content of said conditions and,
in particular that the medical examination was to be carried out in Abu Dhabi. Hence, the
Claimant accepted that the Respondent’s decision to sign him was subject to his health
conditions to be checked.
56. Additionally, according to the Respondent, the same specialist involved by the Claimant
confirmed that his ability to play could be affected by his health condition revealed by the MRI
and that this confirms that the Respondent had reason to believe that the investment in the
Claimant was too risky and the fact that he eventually continued his sporting career is of no
relevance for the purposes of these proceedings.
57. In conclusion, the Respondent states that since the parties were bound to sign a definitive
employment contract only if the Claimant was declared in good physical condition by the
doctor entrusted by the Respondent, the refusal to conclude the transfer was the only feasible
option for the Respondent, which, therefore, cannot be held responsible for breach of a
contract.
58. In regards to the signing of the player Carlitos, the Respondent submits that after having
discovered that the Claimant was not in perfect physical condition to perform football at a
high level, it needed to urgently conclude the transfer of a forward player of international level
for completing its roster for season 2019/2020. The transfer market opportunities led the
Respondent to sign Carlitos, who was known to the technical team of the club.
59. Finally, the Respondent states that it cannot be held liable for the Claimant's exclusion from
the list of participants in the 2019/2020 UEFA Champions League. As a matter of fact, it is
quite obvious that the Claimant should have awaited an official confirmation from the
Respondent with regard to the successful completion of the medical test - as well as the
signature of the contracts before deciding to terminate his contract with his former club.
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60. In conclusion, according to the Respondent, its arguments presented above show that it did
not breach any obligation to conclude an employment agreement with the Claimant and acted
in good faith throughout the whole negotiation with the Claimant. As a consequence, the
Respondent asks the DRC to dismiss the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
61. 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 1 June 2021 and submitted for decision on
14 October 2021. Taking into account the wording of art. 31 and 34 of the October 2021
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.
62. 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 (August 2021 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a French/Comorian player and a
Emiratis club.
63. 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 (August 2021 edition) and
considering that the present claim was lodged on 4 June 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
64. 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).
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c. Merits of the dispute
65. 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.
i. Main legal discussion and considerations
66. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that according to the Claimant, the Respondent breached the
contract without just cause and that as a result, he is requesting to be awarded compensation
for breach of contract.
67. The Chamber also noted that on the other hand, the Respondent rejected the claim of the
Claimant and stated that there was no valid contract signed between the parties as the initial
document was merely a contract offer/ proposal sent by the Respondent in the context of the
transfer negotiations with the Claimant and his former club..
68. In this context, the Chamber acknowledged that its task was to determine whether there was
a binding contract between the parties.
69. The Chamber started by recalling that contracts are only formed when there is mutual
expression of intent to conclude a contract and an agreement on all the essential elements.
The Chamber further stated that this is necessary in order to provide for legal certainty in the
preliminary dealings between clubs and players.
70. With the above in mind, the Chamber therefore deemed that the main question to be
answered by it is whether the contract offer was valid and binding between the parties as
indicated by the Claimant. In this regard, the Chamber first of all noted that the contract offer
clearly stated that “what has been mentioned above is only an offer (and not financially
binding in its own right), merely for the purpose of obtaining your initial interest to proceed
further to make a formal contract, if both parties hereby agree upon and there is no objection
or claim whatsoever from your present club to affect the transfer”.
71. Additionally, the members of the Chamber also noted that there was no designated
provision/space in the contract offer for the Claimant to sign and that he had simply added
some conditions to the document, effectively making a counteroffer, which the Respondent
agreed to via e-mail.
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72. In continuation, the Chamber took note of article 6 of the contract offer, which stated that “a
formal contract shall be made between Al Wahda Club FC and you as a player, if you accept
our offer, reach an agreement with your club and successfully pass the required medical
examination”.
73. In this regard, the Chamber first of all wished to recall and reconfirm that in accordance with
the well-established jurisprudence and art. 18 par. 4 of the FIFA RSTP, employment contracts
cannot be made subject to passing certain medical tests. This does not mean, however, that
documentation exchanged in the context of preliminary negotiations cannot make reference
to the requirement for a player to pass a medical examination prior to the parties proceeding
to conclude an employment contract.
74. According to the members of the Chamber, after having evaluated all the relevant documents
on file, the intention of the contract offer circulated between the parties in this case was very
clear: the offer was made in the context of a transfer negotiation to enquire whether the
Claimant was potentially interested in a transfer to the Respondent. Should the Claimant have
been interested, should he have passed a medical test and should the Respondent and the
former club of the Claimant have found an agreement on the transfer, then – and only then
– the Claimant and the Respondent would have proceeded to the signing of an employment
contract. In other words: the Chamber finds that the document sent by the Respondent on 20
August 2019 was clearly not supposed to be an employment contract but part of the
negotiations between the parties. This was clearly also the Claimant’s understanding since he
added additional demands to the proposal of the Respondent.
75. In continuation, the Chamber noted that further to the above, the Respondent sent a draft
employment contract to the Claimant, which once again the Claimant via his representative,
made amendments to in an email dated 29 August 2019 and that the Respondent responded
(via email) stating that “(…) the amended contract would be ready for signature upon your
arrival in Abu Dhabi”.
76. In this case, the Chamber deemed that there was a clear indication that there was no binding
arrangement and that a contract could only be concluded once several elements were agreed.
77. In view of the above and considering the specific circumstances of this case, the members of
the Chamber deemed that the contract offer dated 20 August 2019 that was sent to the
Claimant was not designated to be a final and binding contract between the parties and that
it was subject to a number of conditions to be fulfilled, as per the (unequivocal) contents of
the contract offer and the subsequent correspondences between the parties.
78. With regard to the draft employment contract exchanged between the Parties, the members
of the Chamber observed that the Parties had made the entry into force of the contract subject
to the signature of both Parties, and that the contract did not appear to be the final version
as some credentials were missing. The members of the Chamber also noted that the Claimant
did not provide FIFA with a final and signed version of the draft employment contract. On the
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other hand, the members of the Chamber are also aware that the correspondence between
the Parties indicates that the negotiations between the Parties were at an advanced stage.
Nevertheless, also in this advanced stage, the Parties seemed to attach special importance to
the formal signature of the final contract, as the Respondent informed the Claimant that “[t]he
amended contract will be ready for signature upon your arrival in Abu Dhabi.”
79. After analysing the correspondence between the Parties as well as the particularities of the
draft employment contract, the members of the Chamber were not sufficiently convinced that
the Parties had the intention to conclude an employment contract by means of the exchanged
documents.
80. Consequently, given the very particular circumstances of this case, the Chamber concluded
that there was no valid and binding contract signed between the parties.
81. The DRC concluded its deliberations by deciding that the claim of the Claimant is rejected.
d. Costs
82. 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.
83. 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.
84. 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, El Fardou Ben Mohamed, is rejected.
2. 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
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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