Labour Disputes
Texto da decisão
REF. FPSD-13226
Decision of the
Dispute Resolution Chamber
passed on 6 June 2024
regarding an employment-related dispute concerning
the player Saado Abdelsalam Fouflias
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Oleg Zadubrovskiy (Russia), member
Tomislav Kasalo (Croatia), member
CLAIMANT:
Saado Abdelsalam Fouflias, Palestine & Greece
Represented by FIFPro Africa
RESPONDENT:
Ismaily SC, Egypt
pg. 2
REF. FPSD-13226
I. Facts of the case
1.
On 23 December 2022, the Greek & Palestinian player, Saado Abdelsalam Fouflias
(hereinafter: the Claimant) travelled from Greece to Egypt following a contact made by the
the Egyptian club, Ismaily SC (hereinafter: the Respondent) in terms of possibly signing a
contract.
2.
On 16 January 2023, the Claimant attended his first training session with the Respondent.
3.
Throughout January 2023, the Claimant allegedly participated in friendly matches on behalf
of the Respondent.
4.
On 8 February 2023, the Claimant and the Respondent allegedly signed an employment
contract (hereinafter: the Contract) valid as from the date of signature until July 2024.
5.
In accordance with the employment contract, the Respondent allegedly undertook to pay
to the Claimant a total remuneration of USD 200,000.
6.
Since the signature of the Contract, the Claimant allegedly verbally requested various
copies of the Contract, to no avail.
7.
On 26 February 2023, the Claimant allegedly verbally requested a meeting with the
Respondent.
8.
On 27 February 2023, the Claimant allegedly went to the Respondent’s headquarters and
requested a copy of the Contract and for formal registration. In said meeting, the
Respondent allegedly informed the Claimant that there was a misunderstanding
concerning his Contract, and that he could not receive a copy since the Contract had been
“temporarily misplaced”. The Claimant had allegedly subsequently left, however, as he was
leaving, the Technical Director of the Respondent allegedly promised to call him the next
day and provide him a copy.
9.
On 1 March 2023, the Claimant allegedly terminated the Contract unilaterally.
10. On 6 March 2023, the Claimant flew to Greece.
11. At an unspecified date, the Technical Director of the Respondent allegedly sent him a
message on the social media platform Instagram, stating “Keep going saado”.
12. On 25 October 2023, the Claimant sent the Respondent a default notice, stating that he
had terminated the Contract with just cause on 1 March 2023, and requesting
compensation of USD 200,000, i.e., the residual value of the Contract within 15 days.
pg. 3
REF. FPSD-13226
II. Proceedings before FIFA
13. On 3 January 2024, 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
14. In his claim, the Claimant argued that the Respondent portrayed a complete lack of
interest, failing to provide him with a copy of the Contract and not registering him formally.
15. The Claimant asserted that he had participated in various training sessions and friendly
matches, demonstrating the validity of the Contract despite the lack of a copy thereof.
16. The Claimant provided some media reports expressing rumours as to the conclusion of a
contract being close, as well as voice messages (in Arabic) between the Claimant’s agent
and the Respondent as evidence to this effect.
17. The Claimant wished to emphasise that he lost faith in the Respondent’s willingness to
pursue the Contract, leading him to terminate the Contract with just cause due to abusive
behaviour.
18. Thus, the Claimant requested compensation for breach of contract without just cause in
the amount of USD 200,000, as well as interest of 5% p.a. applicable on said amount.
b. Position of the Respondent
19. In its reply, the Respondent outlined that preparations had been made to integrate the
Claimant into the team, however, as the Claimant’s physical and technical level was
insufficient, the Respondent decided not to enter into a formal agreement.
20. The Respondent equally argued that the Claimant concealed that he had been an amateur.
21. The Respondent emphasised that no copy of the Contract was submitted to the file and
denied the existence of a formal employment contract. In this respect, the Respondent
dismissed the importance of the media reports submitted by the Claimant, stating that
they do not demonstrate the existence of a contract.
22. The Respondent also asserted that the Claimant voluntarily travelled to Egypt and bought
the plane ticket himself, further undermining the line of argument that the Respondent
had initiated any kind of relationship. The Respondent hereby emphasised that the
Claimant was also training with another team after arriving in Egypt, and that this further
demonstrated that there was no conclusive agreement between the parties, capable of
giving rise to any obligations.
pg. 4
REF. FPSD-13226
23. Overall, the Respondent requested for the claim to be dismissed.
c. Replica of the Claimant
24. In his replica, the Claimant acknowledged that he was training with another team, however,
that he ceased to do so when he joined the Respondent on 16 January 2023 for the first
training session. The Claimant therefore denied that he was “coexisting” with another team.
25. The Claimant emphasised that his agent was in constant contact with the Respondent, and
that his formal registration was imminent.
26. The Claimant also addressed the line of reasoning that there is no copy of the Contract on
file by stating that he had been pictured with representatives of the Respondent after
signing the Contract.
27. The Claimant also argued that the fact that his flight ticket was not provided by the
Respondent was irrelevant, given that he had purchased said ticket after the Respondent
expressed interest in his services.
28. Lastly, the Claimant insisted that the media reports, being from multiple outlets, support
his argumentation.
29. Thus, the Claimant reiterated his request for relief.
d. Duplica of the Respondent
30. In its duplica, the Respondent reiterated all of its previous arguments.
e. 3rd submission of the Claimant
31. Upon the invitation of the Football Tribunal, the Claimant provided additional comments
as to the contractual situation with the Respondent – in particular in light of an instruction
entered into the Transfer Matching System (TMS) by the Respondent.
32. The Claimant hereby emphasised that the TMS entry “further proves and confirms that,
despite the fact that the Player was never provided with a copy of his contract, a contract was
indeed signed between the Parties which was valid from February 2023 until the end of
July 2024.”
33. The Claimant further argued that the Respondent initiating the transfer instruction shows
that the Claimant and the Respondent were contractually bound to each other.
pg. 5
REF. FPSD-13226
34. As to the amount indicated in TMS, the Claimant insisted that USD 200,000 was the total
value of the Contract agreed upon. Notwithstanding, the Claimant argued that, should the
Chamber decide that the burden of proving an agreement upon such amount is not met,
then the minimum amount taken into consideration should be EGP 2,750,000.
35. Therefore, aside from the subsidiary request for relief formulated in light of the TMS entry,
the Claimant reiterated his initial petition.
f. 3rd submission of the Respondent
36. Upon the invitation of the Football Tribunal, the Respondent provided additional
comments as to the contractual situation with the Respondent – in particular in light of an
instruction entered into TMS by the Respondent.
37. The Respondent outlined that the TMS instruction which had been entered corresponded
to a “draft” which would subsequently, and upon formal conclusion of any employment
contract, be amended and finalised in TMS.
38. The Respondent emphasised that the disparity in the amounts demonstrates that there
was no final agreement between the parties and that the Respondent changed its mind
about engaging the Claimant prior any formal conclusion of an employment contract.
39. Aside from this, the Respondent reiterated its request for relief.
pg. 6
REF. FPSD-13226
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
40. 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 3 January 2024 and submitted
for decision on 6 June 2024. Taking into account the wording of art. 34 of the March 2023
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.
41. 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 February 2024 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 Greek-Palestinian
player and an Egyptian club.
42. 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 (February 2024 edition) and
considering that the present claim was lodged on 15 February 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
43. 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 TMS.
c. Merits of the dispute
44. 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.
pg. 7
REF. FPSD-13226
i. Main legal discussion and considerations
45. 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 the existence and
potentially unlawful termination of the Contract.
46. The Chamber proceeded to shortly summarise the parties’ main arguments. On one hand,
according to the Claimant, he terminated the contract with just cause due to abusive
behaviour. In particular, the Claimant argued that the Respondent, after inviting him to
travel to Egypt, completely neglected the relationship and failed to provide the Claimant
with a copy of the Contract, as well as register him.
47. The Respondent, on the other hand, challenged the existence of the Contract, arguing that
the Claimant travelled to Egypt on his own initiative. After becoming aware of his
performance level during a voluntary training session which he conducted at the same time
as visiting another team, no agreement was concluded.
48. The Chamber understood that its task was to answer the following questions:
-
Was an employment contract validly concluded between the parties?
-
If affirmative, by whom, and under what circumstances was such contract
terminated?
-
What are the consequences?
49. As such, the Chamber considered the first question, concerning the validity (or the
existence) of the Contract.
50. In this respect, the Chamber recalled the basic principles upon which the existence of an
employment contract is established, pursuant to the jurisprudence of the Football Tribunal;
in order to give rise to a valid and binding employment contract, the requirement of
essentialia negotii must be met. That is, there must be sufficient evidence of the terms of a
supposed agreement on file, in particular including the remuneration payable to the player,
the term of the contract, the indication that he would be employed as a professional
football player and a signature (or similar) indicating the parties’ intention to be bound.
51. The Chamber hereby considered that such analysis must be conducted based on the
evidence on file, and, importantly, on the basis of art. 13 par. 5 of the Procedural Rules.
Thus, the Chamber took into account the evidence included in the parties’ submissions, in
particular those of the Claimant, and considered such documentation in turn with regard
to addressing the question of the Contract’s validity.
pg. 8
REF. FPSD-13226
52. Firstly, the majority of the Chamber opined that, although the Claimant provided
photographic evidence of holding a copy of a purported employment agreement in front
of the Respondent’s badge with a representative, this per se did not point to the satisfaction
of the criteria set out by the doctrine of essentialia negotii, not pointing to any of the terms
of the Contract, unlike prior correspondence between the parties, draft agreements or an
offer would have.
53. On its own, such kind of evidence is not sufficient to establish the existence of a valid and
binding employment relationship upon which a monetary claim could be based – rather
being circumstantial by nature.
54. The majority of the Chamber considered this detrimental to meeting the requisite
threshold of certainty, at least in terms of two of the key provisions that an employment
contract should incorporate – namely, duration and financial conditions.
55. The Chamber observed that the Claimant had submitted various media reports pointing to
a potential agreement having been concluded between the two parties. Notwithstanding,
the majority of the Chamber deemed that, whilst these media reports appeared to suggest
that the Respondent was interested in acquiring the Claimant’s services, they fail to
concretely demonstrate the existence of a valid and binding employment contract, or to
substantially support the satisfaction of the standard set by the doctrine of essentialia
negotii.
56. Equally, the Chamber took note of the Claimant’s audio and video evidence which
purportedly supports the latter’s argument as to the existence of the Contract.
Notwithstanding, it was the majority’s opinion that such evidence did not contain a
concrete link to any recognised representative of the Respondent, or any form of
identification of the parties involved, to the extent of supporting the allegations of the
Claimant.
57. The majority of the Chamber also considered that these recordings were provided out of
context and, in as far as determining whether a Contract had at all been concluded, rather
referred to circumstantial matters such as the Claimant’s passport and the participation in
training and friendly matches – matters which are not seen exclusively in employment
relationships, but also in other forms of arrangements (such as trials).
58. Particularly in respect of the last point in the preceding paragraph, the majority of the
Chamber recalled that the Claimant had acknowledged that he was training and/or trialling
with another team in Egypt at the same time as the alleged conclusion of the Contract
forming the basis of the present dispute.
59. Furthermore, the Chamber went on to discuss the transfer instruction contained on TMS,
based on which the parties were invited to provide their comments in accordance with
art. 23 par. 2 of the Procedural Rules.
pg. 9
REF. FPSD-13226
60. In terms of the substantial terms of the alleged Contract, the majority of the Chamber was
deterred by the notable difference (both in amount and in currency) between the total
remuneration alleged by the Claimant in his petition and the remuneration indicated in the
“draft” (as put by the Respondent) TMS instruction.
61. In particular, it was considered that such incongruence further served to undermine the
certainty of the terms any potential contract, and in particular, whether a consensus had
been reached concerning the remuneration the Claimant would be entitled to receive (not
to mention, under what circumstances such remuneration would be payable – i.e., as
guaranteed salaries, or subject to certain performance-based conditions, etc.).
62. Equally, unlike an offer, draft contract, or even an exchange of written correspondence
negotiating the terms would have created a legitimate expectation for the Claimant to an
agreement, the majority of the Chamber deemed that the TMS instruction did not serve
such purpose.
63. As to the criterium of mutual consent to be legally bound, the Chamber wished to
collectively point out that the Respondent’s argument of such instruction merely being a
“draft” was not very convincing, since it did not detract from the reality that it existed and
was accessible on TMS.
64. Notwithstanding, the majority was convinced that this could not be equated to an
“admission” of the Respondent that the parties had reached a consensus as to the
substantial terms of the Contract, particularly in light of the aforementioned considerations
that the remaining supporting evidence fails to point to an employment contract having
been validly concluded.
65. Had there been any documentation at all which could have supported the existence of the
transfer instruction in TMS (such as e-mail communication between the Claimant and a
representative of the Respondent negotiating the terms, or a draft employment
agreement), the majority of the Chamber noted that a stronger argument in favour of the
existence of a conclusive employment relationship could have been formed.
66. Consequently, the majority of the Chamber held that the Claimant fell short of meeting the
burden of proving that the requirements of essentialia negotii were met, both on the
grounds of remuneration and the mutual intention to be legally bound.
67. For the sake of completeness, the majority of the Chamber wished to highlight that even if
the Contract were to be taken as valid and binding, the Claimant failed to adduce any
evidence as to when (if at all) he terminated the Contract, merely alleging that this was
done on 1 March 2023.
pg. 10
REF. FPSD-13226
68. Moreover, no evidence of any communication with the Respondent following the supposed
signature of the Contract, urging the Respondent to rectify its behaviour was submitted to
the file. In fact, it appeared from the file that the Claimant completely broke off contact as
from the alleged date of termination (1 March 2023) until the date of the first default notice
(25 October 2023), making it difficult to ascertain the circumstances of a potential
contractual termination.
69. Consequently, given the conclusion that there was no employment agreement in place
between the parties, the Claimant’s petition bore no contractual basis.
70. Therefore, the Chamber decided, by majority, that the claim should be rejected in its
entirety.
d. Costs
71. 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.
72. 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.
73. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-13226
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Saado Abdelsalam Fouflias, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-13226
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 Governing the Football
Tribunal).
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
pg. 13