Labour Disputes
Texto da decisão
REF FPSD-6638
Decision of the
Dispute Resolution Chamber
passed on 27 October 2022
regarding an employment-related dispute concerning the player
Youssef El Jebli
BY:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
Johan van Gaalen (South Africa), member
Michele Colucci (Italy), member
CLAIMANT:
Youssef El Jebli, the Netherlands
Represented by Ruiz-Huerta Crespo Abogados
RESPONDENT:
Al Batin, Saudi Arabia
Represented by Messrs Nasr Eldin Azzam and Abdelrahman
Hashish
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I.
Facts of the case
1.
On 13 September 2020, the Dutch player, Youssef El Jebli (hereinafter: the Claimant), and
the Saudi Arabian club, Al Batin (hereinafter: the Respondent) signed an employment
contract (hereinafter: the Contract) valid as from 30 September 2020 until
29 September 2022.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant a total remuneration of EUR 1,600,000, divided into the following instalments:
-
EUR 400,000 as an advance payment (date of payment not specified contractually);
-
EUR 50,000 as monthly remuneration over the course of 24 months (i.e., the term of
the Contract).
3.
Furthermore, in accordance with Item 4 par. 4 of the Contract, the Respondent undertook
to provide the Claimant with “insurance covering injury, medical treatment, sickness disability
or death during the term of his contract with [the Respondent], provided that it shall include
insurance coverage for the cases whose effects extend after the end of the contract.”
4.
On 30 May 2021, after avoiding relegation, the President of the Respondent allegedly
promised all of the players employed by the latter a bonus of SAR 125,000.
5.
On 11 March 2022, during a league match against Al Feiha Football Club, the Claimant
injured himself and underwent an MRI examination in order to diagnose his injury. In this
respect, the results of the MRI showed that the Claimant suffered a serious injury which
required surgery. The Claimant alleged that the official club doctor of the Respondent
advised the former to undergo surgery outside of Saudi Arabia, given the lack of
specialists concerning this type of injury.
6.
On 16 March 2022, the Respondent sent the Claimant a letter in which it authorized the
latter to travel to the Netherlands for the surgery and, additionally, bear the costs of the
operation once these costs have been established.
7.
On 21 March 2022, the Claimant sent the Respondent a letter in which he informed the
latter of the official medical report produced by a clinic in his home country, the
Netherlands, as well as the estimated costs of the surgery, EUR 4,500. The Claimant
requested the confirmation by the Respondent that it will bear the total costs of the
surgery – in accordance with the Contract – as well as additional information as to
whether recovery following the surgery was to be conducted in Saudi Arabia, or whether
he was allowed to remain in the Netherlands.
8.
On 23 March 2022, the Claimant sent a further letter to the Respondent, chasing a reply
with regards to its previous communication.
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9.
On the same day, the Respondent sent a letter to the Claimant, requesting the bank
account details of the hospital/clinic in order to pay for the surgery. Said payment never
occurred and the Claimant eventually bore the final costs of the surgery (i.e. EUR 5,969)
himself.
10. By correspondence dated 13 May 2022, the Claimant put the Respondent in default of
payment of the following amounts (in total EUR 181,580), granting the latter a deadline of
10 days to remedy the alleged breach of contract:
-
EUR 150,000, corresponding to the unpaid salaries for the months of February 2022,
March 2022 and April 2022;
EUR 31,580, corresponding to the converted amount of SAR 125,000 which was
allegedly promised by the President of the Respondent to all players, including the
Claimant, for avoiding relegation.
11. By correspondence dated 23 May 2022, the Claimant once again put the Respondent in
default of payment of the same amount, granting a deadline of 5 additional days for the
latter to remedy the alleged breach.
12. By correspondence dated 30 May 2022, the Claimant informed that he considered the
Contract terminated as from 28 May 2022; furthermore, the Claimant granted the
Respondent a further deadline of 7 days to pay all allegedly outstanding amounts,
otherwise he would seek redress before FIFA’s judicial bodies.
13. On the same day, the Claimant received the invoice for the surgery as outlined above,
with the final amount of EUR 5,969 falling due and being paid by the Claimant himself.
II. Proceedings before FIFA
14. On 5 July 2022, 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
15. According to the Claimant, the Respondent failed to comply with its obligations under the
Contract by failing to pay three monthly salaries in the amount of EUR 150,000 between
March 2022 and May 2022 as well as the bonus which was allegedly promised by the
Respondent’s President for avoiding relegation, in the amount of SAR 125,000
(approx. EUR 31,580), and lastly the surgery costs in the amount of EUR 5,969 which were
contractually stipulated under Item 4 par. 4 of the Contract.
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16. The Claimant outlined that he put the Respondent in default of the outstanding salaries
and the bonus payment to which he claimed entitlement, granting a combined deadline
of 15 days for the Respondent to comply with the contractual obligations. As such, the
Claimant asserted, there was just cause to terminate the Contract.
17. The Claimant requested outstanding remuneration in the amount of EUR 187,549,
corresponding to outstanding salaries in the amount of EUR 150,000, surgery costs in the
amount of EUR 5,969 and the non-relegation bonus of SAR 125,000, which, converted into
EUR, amounts to EUR 31,580.
18. Furthermore, the Claimant requested compensation in the amount of EUR 200,000,
corresponding to four monthly salaries between June 2022 and September 2022, or the
residual value of the Contract as from the date of termination.
19. The Claimant also requested interest on the “overdue amounts” of 5% p.a. as from the
respective due dates of the allegedly unpaid instalments until the date of effective
payment.
20. Lastly, the Claimant requested his legal fees in the amount of USD 5,000 to be paid by the
Respondent.
b. Position of the Respondent
21. Firstly, the Respondent stated having made a payment of EUR 50,000 to the Claimant on
30 May 2022 corresponding to the salary for the month of February 2022.
22. Furthermore, the Respondent contested the assertion by the Claimant that it had agreed
to the Claimant travelling to the Netherlands for his treatment. However, in this respect,
the Respondent did not dispute the fact that it subsequently agreed to pay for the surgery
in the Netherlands and requested the bank account details of the clinic where said
surgery would take place.
23. The Respondent submitted that it considered his absence for the surgery, which was
allegedly without its authorisation, a violation of the Contract sanctionable by fines and
other disciplinary measures, but that it did not inform the Claimant thereof so as not to
affect his “focusing and mental status”.
24. The Respondent also alleged attempting to call the Claimant several times in order to
ascertain when he would return to Saudi Arabia, to no avail.
25. The Respondent maintained that, as it acted in good faith by not imposing disciplinary
sanctions on the Claimant for his allegedly unauthorised absence, this should be taken
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into account with regards to the question as to whether or not the Contract was
terminated with just cause or not.
26. Furthermore, the Respondent argued that, since the absence was unauthorised, the
Claimant shall not be entitled to payment of his surgery costs and all associated costs,
including flight tickets, subject to the internal “club regulations”.
27. Lastly, the Respondent rejected the submission that the Claimant was entitled to the
bonus of SAR 125,000, which was allegedly promised by the President of the Respondent.
In this regard, the Respondent argued that the translation of the video evidence
submitted by the Claimant is incorrect, and that the Respondent’s President promised to
pay each player SAR 125 (approx. USD 32), as opposed to SAR 125,000
(approx. EUR 32,000) as a reward for avoiding relegation. Moreover, the Respondent
argued that, in accordance with the Swiss Code of Obligations, the promise of a gift is only
valid if done in writing.
28. The Respondent also submitted that, since the Claimant was absent without the
authorisation of the former, for the period during which he was absent, he was entitled
to no salaries whatsoever. Therefore, as he was not entitled to any salaries, the
Respondent had no debt towards him, meaning that the Contract was terminated without
just cause by the Claimant.
29. The Respondent, therefore, requested that the Claimant is either held to have terminated
the Contract without just cause, thereby not entitling him to any compensation, or,
subsidiarily, if the termination is held to have been with just cause, that only the
outstanding salaries be awarded to the Claimant.
c. Replica of the Claimant
30. In addition to reaffirming the points already submitted in his claim, the Claimant also
stressed further additional arguments.
31. Firstly, the Claimant pointed out that the Respondent failed to provide the Claimant with
medical insurance, which is a breach of Item 4 par. 4 of the Contract, and a violation of
the fundamental right to healthcare.
32. Furthermore, the Claimant asserted that he received the letter dated 16 March 2022
which was signed and stamped by the Respondent, authorising him to travel to the
Netherlands to complete the necessary surgery, and that the latter would bear the
financial costs thereof.
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33. Despite this, the Claimant reiterated that he had to pay the costs of the surgery himself,
and even after putting the Respondent in default of payment thereof, was not reimbursed
the relevant fees.
34. Furthermore, as to the allegedly unauthorised absence of the Claimant, the latter referred
to the same letter of 16 March 2022 in which he was expressly authorised to depart to
the Netherlands for the surgery and, allegedly, linked rehabilitation. Furthermore, the
Claimant pointed out that he was never warned that his failure to return to Saudi Arabia
would result in the non-payment of his salaries under the Contract. The Claimant,
therefore, rejects the arguments presented by the Respondent justifying the nonpayment of salaries.
35. Lastly, with regards to the translation of the video capturing the President of the
Respondent allegedly promising the payment of SAR 125,000, the Claimant submitted a
number of online articles which substantiate the original translation supplied with the
claim. The Claimant, therefore, reiterated that the Respondent owed SAR 125,000, as
promised by its President.
d. Duplica of the Respondent
36. The Respondent provided brief comments, conceding that the Claimant was authorised
to leave Saudi Arabia to the Netherlands to complete the operation, but arguing that any
absence beyond the operation itself amounted to bad faith and grounds for the nonpayment of the relevant salaries.
37. Furthermore, the Respondent dismissed the evidence (i.e. the news articles / online
publications) submitted by the Claimant, arguing that it is non-conclusive and that it
should not be taken into consideration. The Respondent argued that, by not submitting a
certified translation of the video recording in question, the Claimant has not met the
burden of proof for said evidence to be considered in the amount of outstanding
remuneration to be granted.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
38. 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 5 July 2022 and submitted for
decision on 27 October 2022. Taking into account the wording of art. 34 of the June 2022
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.
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39. 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 (July 2022 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
Dutch player and a Saudi Arabian club.
40. 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 (July 2022 edition),
and considering that the present claim was lodged on 05 July 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
41. 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).
c. Merits of the dispute
42. 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
43. 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 whether several
payments requested by the Claimant are due under the Contract, and consequently, the
lawfulness of the termination by the Claimant on 28 May 2022.
44. In this context, the Chamber recalled that the Respondent acknowledged not having paid
the salaries for the months of March 2022 and April 2022, as well as the costs of the
surgery in the amount of EUR 5,969 and the allegedly promised non-relegation bonus of
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SAR 125,000. Furthermore, the Chamber noted that the Claimant, in his request for relief,
did not claim entitlement to the salary for February 2022, which the Respondent asserted
having paid following the contractual termination, thereby leaving the payment of said
instalment uncontested.
45. Thus, the Chamber acknowledged that it its task was to ascertain whether the
Respondent had a valid justification for defaulting on the above-mentioned payments
and, as a result, whether the Claimant had just cause, in line with the Regulations, to
terminate the employment relationship prematurely.
46. With regards to the costs of the surgery, the Chamber observed that the Respondent
undertook in writing, and on more than one occasion, to pay the costs of the surgery.
Moreover, the Contract stipulates under Item 4 par. 4 that the Respondent shall provide
the Claimant with medical insurance over the course of the contractual term. Therefore,
despite the fact that the final costs of the surgery exceeded the initial estimate presented
by the Claimant, the Chamber concluded that the Respondent shall be held liable to
reimburse the aforementioned costs by the Claimant.
47. Furthermore, the Chamber considered the disputed entitlement of the Claimant to the
non-relegation bonus in the amount of SAR 125,000, which had allegedly been promised
by the Respondent’s President on 30 May 2021. In this respect, the Chamber recalled that
the Respondent challenged the translation of the video, arguing that the true meaning of
the words said by its President was that the players were entitled to a bonus of SAR 125,
rather than SAR 125,000, whilst also observing that the Claimant provided evidence
corroborating its translation of the video in the shape of several media publications.
48. In this respect, the Chamber deemed that the evidence submitted by the Claimant for the
sake of corroborating the translation of the video, in accordance with art. 13 par. 5 of the
Regulations, met the burden of proving that the President of the Respondent had, indeed,
promised the payment of SAR 125,000 to its players, including the Claimant. The Chamber
also pointed out that the ecstatic reaction from the players following the President’s
announcement further supported this conclusion, as opposed to only SAR 125
(approximately EUR 30) being promised.
49. Beyond this, the Chamber observed that the Respondent did not challenge the
authenticity of the video, nor the fact that the person making the promise of SAR 125,000
was, indeed, its President. The Chamber also pointed out that, in accordance with its wellestablished jurisprudence, the President was acting in a professional capacity, thereby
being able to legally bind the Respondent.
50. Taking into account the above-mentioned aspects, the Chamber concluded that the
Respondent had indeed promised to the Claimant a payment of SAR 125,000 as a reward
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for not being relegated on 30 May 2021, and that it shall be held liable towards the
Claimant for said amount.
51. The Chamber then went on to consider the lawfulness of the contractual termination by
the Claimant on 28 May 2022. In this respect, it recalled the claimant’s argumentation
that, at the time the Contract was terminated, the Respondent had failed to pay the
salaries for the months of March 2022, April 2022 and May 2022, as well as the
aforementioned bonus and the costs of the surgery. The Chamber wished to point out
that, at the moment the Contract was terminated, the salary for the month of May 2022
had not fallen due yet.
52. The Chamber also reiterated the Respondent’s counterarguments, namely that the
Claimant had been absent without authorisation beyond the date of the surgery itself. In
this respect, the Claimant had, in turn argued that he requested to be told whether he
could stay in the Netherlands following the surgery for recovery, and that said enquiry
had been left unanswered by the Respondent. Furthermore, the Respondent never
warned the Claimant that his absence was unauthorised until the present proceedings,
and provided no evidence corroborating its claim that it attempted to contact the latter
as to when he would return.
53. Having carefully considered these things, the Chamber established that the Respondent
failed to demonstrate that the Claimant had been absent without authorisation and that,
consequently, the non-payment of the salaries for the period between March 2022 and
April 2022 was not justified.
54. Therefore, considering that the Respondent had defaulted on two monthly salaries, as
well as the bonus of SAR 125,000 and the surgery costs in the amount of EUR 5,969, and
taking into account that the Claimant had put the Respondent in default of those
payments , granting a combined deadline of more than 15 days, the Chamber concluded
that the Contract had been terminated by the Claimant with just cause.
ii. Consequences
55. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
56. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, was equivalent to
EUR 105,969 (i.e., two monthly salaries of EUR 50,000 for March 2022 and April 2022, plus
the costs of the surgery incurred by the Claimant), plus SAR 125,000 (i.e., the nonrelegation bonus, promised on 30 May 2021).
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57. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under the contract at the moment of the termination,
i.e. EUR 105,969 plus SAR 125,000.
58. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from the following dates:
-
On the amount of SAR 125,000, as from 31 May 2021 until the date of effective
payment;
-
on the amount of EUR 50,000, as from 1 April 2022 until the date of effective payment;
-
on the amount of EUR 50,000, as from 1 May 2022 until the date of effective payment;
-
on the amount of EUR 5,969, as from 31 May 2022 until the date of effective payment.
59. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing
so, the Chamber 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.
60. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the Contract contained a provision by means of which the parties had
beforehand agreed upon an amount of compensation payable in the event of breach of
contract. In this regard, the Chamber established that no such compensation clause was
included in the Contract.
61. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of compensation
payable.
62. Bearing in mind the foregoing as well as the request of the Claimant, the Chamber
proceeded with the calculation of the monies payable under the terms of the Contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
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concluded that the amount of EUR 250,000 (i.e. 5 times EUR 50,000 or the residual value
of the Contract) serves as the basis for the determination of the amount of compensation
for breach of contract.
63. In continuation, the Chamber verified as to whether the Claimant 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 DRC 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.
64. In this respect, the Chamber confirmed that the Claimant had not signed any new contract
in the period overlapping with the contractual term.
65. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay the
amount of EUR 250,000 to the Claimant, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
66. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award interest on said compensation at
the rate of 5% p.a. as from 5 July 2022 (i.e., the date of the claim) until the date of effective
payment.
iii. Compliance with monetary decisions
67. Finally, taking into account the applicable Regulations, the Chamber 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.
68. In this regard, the DRC 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.
69. Therefore, bearing in mind the above, the DRC 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
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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.
70. 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.
71. The DRC 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
72. 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.
73. 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.
74. 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, Youssef El Jebli, is partially accepted.
2.
The Respondent, Al Batin, has to pay to the Claimant the following amount(s):
- SAR 125,000 as outstanding remuneration plus 5% interest p.a. as from 31 May 2021
until the date of effective payment;
- EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2022
until the date of effective payment;
- EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
- EUR 5,969 as outstanding remuneration plus 5% interest p.a. as from 31 May 2022
until the date of effective payment;
- EUR 250,000 as compensation for breach of contract without just cause plus interest
of 5% p.a. as from 5 July 2022 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 the ban
shall be of 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.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
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7. 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).
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