Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 January 2020,
in the following composition:
Om ar Ongaro (Italy ), Deputy Chairman
S tefano S artori (Italy), member
Jos é Luis Andrade (Portugal), member
on the claim presented by the player,
Las s aad Jaziri, Tunisia,
represented by Mr Ali Abbes
as Claimant
against the club,
Is m aily S C, Egypt
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 12 July 2018, the player Lassaad Jaziri (hereinafter: the player or the Claimant)
concluded an employment contract with the club Ismaily SC (hereinafter: the club or
the Respondent), valid for “three seasons”, as from the season 2018/2019 until the
end of the season 2020/2021, pursuant to which he was entitled to the total amount
of USD 600,000 as follows:
a.
b.
c.
2.
USD 173,334 for the first season according to the following schedule:
USD 43,337 to be paid on 1 August 2018;
10 monthly salaries of USD 8,666 each, to be paid as from 1 September
2018 until 1 June 2019;
USD 43,337 to be paid on 1 July 2019;
USD 200,000 for the second season;
USD 226,666 for the third season.
By letter dated 28 January 2019, the Claimant addressed the Respondent, asking
that within 48 hours the Respondent:
a.
b.
Reintegrate him in the quota of 4 foreign players in order for him to
participate to the Respondent’s official matches;
Return him his passport.
3.
By letter dated 21 February 2019, the Claimant addressed the Respondent once
more with a correspondence of analogous content.
4.
On 4 March 2019, the Claimant unilaterally terminated the contract
5.
On 18 March 2019, the Claimant lodged a claim against the Respondent,
maintaining that he had just cause to terminate the employment contract and
asking the amount of USD 539,338 as compensation for breach of contract as well
as sporting sanctions to be imposed on the Respondent.
6.
The Claimant explained that, according to the regulations of the Egyptian Football
Association, clubs in Egypt can only register 4 foreign players to figure in the list of
for the matches.
7.
That said, the Claimant pointed out that the Respondent had already filled the 4 spots
for foreign players before the winter transfer window, but however it recruited other
players and ended up with 5 foreign players. The Claimant explained that,
consequently, the Respondent excluded him from the list of those eligible to play
official competitions and put him on a “waiting list”.
Player Lassaad Jaziri, Tunisia / Club Ismaily SC, Egypt
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8.
The Claimant underlined that, according to the DRC jurisprudence and well as that of
the SFT, athletes’ fundamental rights are not limited to receiving their salaries but
also the possibility to compete.
9.
Moreover, the Claimant maintained that the Respondent had retained his passport
in order to put pressure on him and force him to terminate the contract. The Claimant
recalled that on the same day he asked for help via social media to get back his
passport, i.e. 10 March 2019, the Respondent returned it to the Tunisian consulate in
Egypt.
10.
Having been deprived of the possibility to being eligible to play for his club, the
Claimant maintained that he had just cause to terminate the contract and asked to
be compensated in the amount corresponding to the residual value of the contract.
11.
Concerning the calculation of compensation, the Claimant included the salaries as
from April 2019 of the first season (cf. above point I.1.a.).
12.
The Respondent replied that, up until the moment he left the country without
permission, it had paid the Claimant the total amount of USD 98,799.
13.
The Respondent further explained that the Claimant’s exclusion from the official
matches’ list is a purely technical issue and not definitive anyway since clubs in Egypt
“can list different players at different matches”.
14.
In this regard, the club argued that the player is still registered with the club.
15.
Moreover, the Respondent maintained that the Claimant’s argument concerning his
passport “is totally wrong” since he used it to leave the country.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 21 March 2019.
Taking into account the wording of art. 21 of the 2019 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 (cf. article 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players (edition January
Player Lassaad Jaziri, Tunisia / Club Ismaily SC, Egypt
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2020), 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 Tunisian player and an Egyptian club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, the Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition January 2020), and considering that the claim was lodged on 18 March 2019,
the June 2018 edition of the aforementioned regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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. In particular, the Chamber recalled that, in
accordance with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the
scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the TMS.
5.
Having said this, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the documentation
on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with
which any party claiming a right on the basis of an alleged fact shall carry the burden
of proof.
6.
First of all, the members of the Chamber acknowledged that, on 12 July 2018, the
player and the club had concluded an employment contract valid as from the season
2018/2019 until the end of the season 2020/2021, pursuant to which the club
undertook to pay to the player the remuneration, as established in point I.1. above.
7.
Furthermore, the members of the DRC took note of the fact that, on 28 January 2019
and 21 February 2019, the player had sent a letter to the club and requested to be reregistered with the club.
8.
Moreover, the DRC took note that, according to the player, he had just cause to
unilaterally terminate the employment contract on 4 March 2019, since the club failed
to reply to his letters and since the club did not register the player. In this regard, the
player affirmed that he had no alternative but to terminate the contract and deemed
that the club should be held liable for the early termination of said contract.
Player Lassaad Jaziri, Tunisia / Club Ismaily SC, Egypt
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9.
In addition, the Chamber noted that, according to the player, the club retained his
passport in order to put pressure on him and force him to terminate the contract.
10.
Subsequently, the members of the DRC took note that the club, for its part, rejected
the player’s claim that it de-registered the player and deemed that the player was still
registered with the club.
11.
In continuation, the Chamber observed that the club argued that the player’s claim
concerning the retention of his passport are wrong, as the player used the same
passport to leave the country.
12.
In light of the foregoing, the DRC considered that the underlying issue in this dispute,
considering the parties’ position, was to determine as to whether the player had just
cause to terminate the employment contract and to determine the consequences
thereof.
13.
In view of the above, the Chamber subsequently went on to deliberate as to whether
the player was de-registered by the club, and if it can be considered as a just cause
for the player to have prematurely terminated the employment relationship.
14.
In this context, the Chamber considered that the club contested that it de-registered
the player and deemed that the player remained registered with the club and the
Egyptian Football Association, but the DRC noted that the club failed to provide any
documentary evidence for its statements.
15.
As such, the DRC considered that at the time of the termination of the contract, i.e.
on 4 March 2019, despite the arguments of the club that the player remained
registered, the player could reasonably believe that he was de-registered as the club
failed to provide any reply to his letters. Consequently, and considering the situation
of the player at the time of the termination, the Chamber was of the opinion that
the objective circumstances at the time did provide the player with just cause to
prematurely terminate the employment contract.
16.
At this point, the members of the DRC first of all considered important to point out,
as has been previously sustained by the DRC, that among a player’s fundamental
rights under an employment contract, is not only his right to a timely payment of his
remuneration, but also his right to access training and to be given the possibility to
compete with his fellow team mates in the team’s official matches. In this context,
the DRC emphasized that by refusing to register a player, a club is effectively barring,
in an absolute manner, the potential access of a player to competition and, as such,
violating one of his fundamental rights as a football player.
Player Lassaad Jaziri, Tunisia / Club Ismaily SC, Egypt
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17.
Therefore, the members of the DRC concluded that the Respondent effectively
prevented the Claimant from being eligible to play for it for the remainder of the
2018/2019 season, and thus, that the player terminated the contract at the beginning
of the said season.
18.
In light of the aforementioned, the DRC came to the unanimous conclusion that the
player had terminated the contract with just cause.
19.
Having established that the club is to be held liable for the early termination of the
employment contract, the DRC focused his attention on the consequences of such
termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC
established that the player is entitled to receive from the club compensation for
breach of contract.
20.
In this regard, the DRC focused its attention on the calculation of the amount of
compensation for breach of contract due to the Claimant by the Respondent in the
case at stake. In doing so, the DRC 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.
21.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by means
of which the parties had beforehand agreed upon a compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
observed that the employment contract does not contain any such clause.
22.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the player had to be assessed in
application of the parameters set out in art. 17 par. 1 of the Regulations. Bearing in
mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the player under the terms of the employment contract as from its
termination and concluded that the player would have been entitled to receive USD
496,001 as remuneration had the employment contract been executed until its
regular expiry date, i.e. 30 June 2021. Consequently, the Chamber concluded that the
amount of USD 496,001 serves as the basis for the final determination of the amount
of compensation for breach of contract in the case at hand.
Player Lassaad Jaziri, Tunisia / Club Ismaily SC, Egypt
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23.
In continuation, the Chamber assessed whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he
would have been able to reduce his loss of income. In this respect, the DRC deemed
it necessary to refer to the first sentence of art. 17 par. 1 lit. ii) of the Regulations,
according to which, in case the player signed a new contract by the time of the
decision, the value of the new contract for the period corresponding to the time
remaining on the prematurely terminated contract shall be deducted from the
residual value of the contract that was terminated early (the ”Mitigated
Compensation”).
24.
In respect of the above, and according to the information contained in the TMS, the
Chamber recalled that, on 17 July 2019, the Claimant signed an employment contract
with the Saudi Arabian club, Alnahda Sport Club, valid as from 14 July 2019 until 30
May 2020, according to which, he was entitled to a total remuneration in the amount
of USD 40,000.
25.
Consequently, on account of all the above-mentioned considerations, the Chamber
decided that the Respondent must pay the amount of USD 456,001 as compensation
for breach of contract to the player, which is considered by the Chamber to be a fair
and reasonable amount.
26.
Therefore, the DRC decided to partially accept the player’s claim and concluded its
deliberations by rejecting any further claim of the player.
27.
Furthermore, taking into account the consideration under number II./3. above, the
Chamber referred to par. 1 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.
28.
In this regard, the Chamber pointed out 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 and for the maximum duration of three entire and consecutive registration
periods.
29.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering
any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
Player Lassaad Jaziri, Tunisia / Club Ismaily SC, Egypt
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30.
Finally, the Chamber 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. 3 of the Regulations.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Lassaad Jaziri, is partially accepted.
2.
The Respondent, Ismaily SC, has to pay to the Claimant, w ithin 45 day s as from the
date of notification of this decision, compensation for breach of contract in the
amount of USD 456,001.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the email address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts plus interest mentioned under point 2. above.
5.
The Respondent shall provide evidence of payment of the due amount in accordance
with point 2. above to FIFA to the e-mail address [email protected], duly translated
into one of the official FIFA languages (English, French, German, Spanish).
6.
In the event that the amount due in accordance with point 2. above is not paid by
the Respondent w ithin 45 day s as from the notification by the Claimant of the
relevant bank details to the Respondent, the Respondent shall be banned from
registering any new players, either nationally or internationally, up until the due
amount is paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
7.
The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
Player Lassaad Jaziri, Tunisia / Club Ismaily SC, Egypt
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8.
In the event that the amount due in accordance with point 2. above is still not paid
by the end of the ban of three entire and consecutive registration periods, the present
matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Lassaad Jaziri, Tunisia / Club Ismaily SC, Egypt
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