Dispute Resolution Chamber
Texto da decisão
REF FPSD-1935
Decision of the
Dispute Resolution Chamber
passed on 16 June 2021
regarding an employment-related dispute concerning the player Hichem Essifi
BY:
Alexandra Gómez Bruinewoud (Netherlands/Uruguay), DRC Judge
CLAIMANT:
Hichem Essifi, Tunisia
Represented by Ali Abbes, Mohamed Rokbani
RESPONDENT:
Club Al-Wehdat, Jordan
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REF FPSD-1935
I.
FACTS OF THE CASE
1.
On 8 January 2020, the Tunisian player, Hichem Essifi (hereinafter: Claimant or player), and
the Jordan club, Club Al-Wehdat (hereinafter: Respondent or club) signed an employment
contract valid as from the date of the signature until 30 November 2020.
2.
According to the contract, the Respondent undertook to pay the Claimant the total amount
of USD 120,000.
3.
Moreover, the contract defines the following bonuses in its art. 30:
- USD 10,000 “for the league championship for the season 2020”;
- USD 5,000 “for the Jordan Cup for the pro-season 2020”.
4.
Art. 24 of the contract reads as follows: “The two parties hereby declare the jurisdiction
and authority of Arbitration Panel of the Jordanian Football Association (if exits otherwise
the committees and commissions authorized to hear the athletics disputes) and (CAS) in
Lausanne as an arbitrator agree upon to hear any athletics difference or dispute which they
might party to. I undertake not to bring any athletics dispute or difference related to me
before the ordinary courts of law unless the same specifically provided in the rules,
regulations and laws of FIFA, Asian Federation or Jordanian Association. The two parties are
committed to comply with the decision issued by the Arbitration Panel of the Jordanian
Football Association”.
5.
On 22 February 2021, the Claimant put the Respondent in default and requested payment
of the following amounts within 10 days:
- USD 75,514 as residual salary payments;
- USD 10,000 corresponding to the bonus for winning the championship in 2020;
- Jordanian Dinars (JOD) 564 (approx. USD 750) as cup bonus;
- JOD 1,586 (approx. USD 2,200) as match bonuses.
II.
PROCEEDINGS BEFORE FIFA
6.
On 4 March 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
7.
The claim of the Claimant
The Claimant lodged a claim against the Respondent in front of FIFA, requesting the
following monies:
- USD 75,514 as residual salary payments;
- USD 10,000 corresponding to the bonus for wining the championship in 2020;
- Jordanian Dinars (JOD) 564 (approx. USD 750) as bonus resulting from the “FA Shield”;
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- JOD 1,586 (approx. USD 2,200) as match bonuses.
The player requested interest of 5% p.a. as of 30 November 2020 (end of contract).
8.
In his claim, the player held that the club failed to remit the claimed amounts even after he
sent the default notice.
9.
In this regard, the player held having received a total amount of USD 44,486 as salary
payments, which means the club failed to remit the residual amount of USD 75,514.
10.
Furthermore, the player pointed out that the club won the championship in 2020, which
triggered the contractual bonus of art. 30 (USD 10,000) (note: the player submitted
confirmation from an online portal).
11.
Moreover, the player argued being entitled to match bonuses and a bonus resulting from
the “FA Shield” in accordance with the club’s internal regulations. In this context, the player
submitted an extract of said regulations confirming an amount of JOD 250 for the “FA
Shield” and JOD 1,250 for the league.
12.
Finally, the player requested to apply art. 12bis RSTP.
13.
The Claimant insisted on the competence of FIFA and pointed out that no committee in the
Jordan Football Association meets “meets all the criteria” in order to guarantee fair
proceedings.
b.
Position of the Respondent
14.
The Respondent contested FIFA’s competence to deal with the matter at hand on the basis
of art. 24 of the contract.
15.
In this respect, the Respondent held that the parties agreed to submit disputes to “the
judicial committees in Jordanian Football Association and then CAS”.
16.
As to the substance, the Respondent rejected the player’s claim.
17.
According to the club, the player “discharged the club from any sums” by signing a
document titled “final release agreement”.
18.
Furthermore, the club submitted an internal overview with alleged payments in the total
amount of JOD 64,887,600 (approx. USD 91,614) remitted to the player.
19.
In this regard, the club held that there is a “discount” of USD 16,200 due to the impact of
COVID-19 and that the player failed to deduct such amount in his claim. In this regard, the
Respondent submitted certain instructions from the Jordanian FA regarding a deduction in
connection with COVID-19.
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c.
Reaction of the player to alleged payments
20.
In reaction to the Respondent’s allegation that the player waived all his receivables, the
player denied having signed such a document. In this context, he pointed out that the
signature on the document submitted by the Respondent is “false”.
21.
Regarding the submitted cheques, the player acknowledged payments in the total amount
of USD 73,932 and therefore, he pointed out being entitled to an amount of USD 46,068
as outstanding salaries.
22.
He further upheld his claim regarding the bonus for winning the league as well as the cup
and the match bonuses.
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
23.
First of all, the DRC Judge (hereinafter also referred to as the Judge) analysed whether he
was competent to deal with the case at hand. In this respect, it took note that the present
matter was presented to FIFA on 4 March 2021 and submitted for decision on 16 June
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 aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
24.
Subsequently, the DRC Judge 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 DRC Judge
is, in principle, competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Tunisian player and a Jordan
club.
25.
However the Judge acknowledged that the Respondent, in view of art. 24 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 “the judicial committees in
Jordanian Football Association and then CAS”.
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26.
For the sake of clarity, the DRC Judge recalled the wording of Art. 24 of the contract:
“The two parties hereby declare the jurisdiction and authority of Arbitration Panel of the
Jordanian Football Association (if exits otherwise the committees and commissions
authorized to hear the athletics disputes) and (CAS) in Lausanne as an arbitrator agree
upon to hear any athletics difference or dispute which they might party to. I undertake
not to bring any athletics dispute or difference related to me before the ordinary courts
of law unless the same specifically provided in the rules, regulations and laws of FIFA,
Asian Federation or Jordanian Association. The two parties are committed to comply with
the decision issued by the Arbitration Panel of the Jordanian Football Association”
27.
With the aforementioned considerations in mind, and prior to entering into the analysis of
its competence, the DRC Judge 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.
28.
In relation to the above, the DRC Judge 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
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.
29.
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.
30.
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 is not specific enough as it remains
unclear which deciding body within the framework of the FA shall be competent and it
refers to CAS as well. Furthermore, the Respondent failed to submit any
documentation/regulations of such deciding body/bodies within the framework of the FA.
31.
In light of the above, the DRC Judge acknowledged its competence in the matter at hand.
32.
Subsequently, the DRC Judge 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 4 March 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
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b.
Burden of proof
33.
The DRC Judge 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 Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which she may consider
evidence not filed by the parties.
34.
In this respect, the DRC Judge 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.
35.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
the DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
considerations she 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
36.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the parties disagree as to the Respondent’s allegation
that the player signed the “final release agreement” and therefore waived his entitlement
to his dues.
37.
In this context, the DRC Judge acknowledged that her task was to examine the player’s
entitlement to outstanding remuneration in connection with contract or if the player indeed
waived such dues.
38.
On account of the above, the DRC Judge noted that the player denied having signed such
document.
39.
Consequently, the DRC Judge took note of the evidence provided by both parties. However,
the DRC Judge deemed it important to firstly recall that, according to the DRC’s well
established jurisprudence, as a general rule, FIFA’s deciding bodies are not competent to
decide upon matters of criminal law, such as the ones concerning falsified signature of
documents, and that such affairs fall into the jurisdiction of the competent national criminal
authority.
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40.
In respect of the above, the DRC Judge, nevertheless, pointed out that all the
documentation remitted would be considered with free discretion and, therefore, she
focused her attention on the document in question as well as the specific circumstances of
the case at hand.
41.
In this regard, DRC Judge noted that the “final release agreement” submitted by the
Respondent was undated. Furthermore, the Respondent failed to indicate when such
document was allegedly signed by the player.
42.
On account of the above, due to specific circumstances of the case at hand, the DRC Judge
concluded that the Respondent failed to meet its burden of proof regarding the alleged
waiver and therefore decided, not to take into account such document.
43.
Based on the above-mentioned considerations, the player remained entitled to his
remuneration resulting from the contract.
44.
The DRC Judge continued to analyse the Respondent’s argument having fulfilled its financial
obligations and she noted that the club submitted internal payment documents as well as
cheques, which do not proof actual payments of the alleged amounts.
45.
Furthermore, the Respondent referred to a “discount” in connection with COVID-19.
46.
Having said that, the DRC Judge wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at
providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020,
FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides
clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.
47.
For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as
the FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any
specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary.
48.
In this context, the DRC Judge considered that the arguments raised by the Respondent
cannot be considered a valid reason for non-payment of the monies claimed by the
Claimant, in other words, the reasons brought forward by the Respondent in its defence do
not exempt the Respondent from its obligation to fulfil its contractual obligations towards
the Claimant.
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49.
In this regard, the DRC Judge noted that the player acknowledged receipt of a total amount
of USD 73,932, which leaves him with an entitlement of USD 46,068 related to his salaries
the bonus for winning the championship (USD 10,000) as well as the bonus for the “FA
Shield”, i.e. Jordanian Dinars (JOD) 400, which remained uncontested by the club.
50.
The additional bonuses requested by the Claimant were rejected by the DRC Judge, for lack
of contractual basis or acknowledgement by the Respondent.
ii. Consequences
51.
Consequently, the DRC Judge decided that, in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of USD 56,068 and JOD 400.
52.
In addition, taking into consideration the Claimant’s request, the members of the DRC
Judge decided to award the Claimant interest of 5% p.a. as of the day after the contract
ended, i.e. 31 November 2020.
iii. Compliance with monetary decisions
53.
Finally, taking into account the consideration under number 32. above, the DRC Judge
referred to par. 1 lit. and 2 of art. 24bis 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.
54.
In this regard, the DRC Judge 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.
55.
Therefore, bearing in mind the above, the DRC Judge 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 duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
56.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
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57.
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. 24bis par. 8
of the Regulations.
d.
Costs
58.
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.
59.
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 DRC JUDGE
1.
The claim of the Claimant, Hichem Essifi, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club Al-Wehdat, has to pay to the Claimant, the following amounts:
- USD 56,068 plus 5% interest p.a. as from 31 November 2020 until the date of effective
payment;
- Jordanian Dinar (JOD) 400 plus 5% interest p.a. as from 31 November 2020 until the date of
effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
6.
Pursuant to article 24bis/article 8 of Annexe 8 of the Regulations on the Status and Transfer of
Players if full payment (including all applicable interest) is not paid 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 paid by the end of
the of the three entire and consecutive registration periods.
7. The consequences shall only be enforced at the request of the Claimant in accordance with
article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and Transfer of
Players.
8. This decision is rendered without costs.
For the DRC Judge:
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:
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