Dispute Resolution Chamber
Texto da decisão
REF FPSD-2056
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player Mabrouk Jendli
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Mabrouk Jendli, Tunisia
RESPONDENT:
Ohod, Saudi Arabia
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REF FPSD-2056
I.
Facts
1.
On 4 October 2020, the player (born on 6 March 1992) and the club concluded an employment
contract valid as from the date of signature until 3 July 2021 (i.e. 9 months).
2.
According to art. 4 of the contract, the player was entitled to a monthly salary of USD 5,666.
3.
In addition, following the same article, the player was entitled to the following benefits:
“accommodation and transportation + health insurance + win and draw bonus”
4.
Art. 10.3 of the contract included the following:
« 3-Si une des deux parties souhaite resilier le contrat, il sera payé un salaire mensuel à l 'autre
partie »
In English (free translation)
"3-If either party wishes to terminate the contract, the other party will be paid a monthly salary.
5.
Art 9.3 of the contract stipulated the following:
Article 9: Reglement des differends:
1-Les deux parties s'efforceront de resoudre leurs differends sur I' execution du contrat par un
reglement a l'amiable
2-Le comite est competent pour les litiges survenant entre le club et le joueur professionnel
concemant les termes du contrat et sa mise en ceuvre.
3-En cas de litige entre les deux parties, recourir au Centre d'arbitrage saoudien. »
In English (free translation – the contract was concluded in Arabic, but the claimant provided a
translation into French):
Article 9: Settlement of disputes:
“1-The two parties shall endeavor to resolve their disputes on the execution of the contract by
an amicable settlement
2-The committee is competent for disputes arising between the club and the professional player
concerning the terms of the contract and its implementation.
3-In case of dispute between the two parties, to resort to the Saudi Arbitration Center.”
6.
On 13 December 2020, the Player claims that he was injured in his left knee during a training.
7.
On 14 January 2021, the club sent a termination letter to the player due to poor performance
(note: there is no copy of said letter, but both parties acknowledged its existence)
8.
On 17 January 2021, the club sent a letter to the player, referring to the termination of 14
January 2021 and noting that a cheque was provided to the Saudi FA on 17 January 2021
(3069946).
9.
On 23 January 2021 the Club evicted the player.
10.
On 27 January 2021, the player sent a default notice to the club indicating the following:
“we herewith request a 5-day deadline to:
Pay the player’s December salary
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Obtain all relevant administrative formalities (…) to lawfully come back, reside and work in
Saudi Arabia, or at least to provide us with due evidence that necessary steps have been
undertaken (…) to enable a quick return, including a return ticket at suitable dates;
Provide a clear commitment that the player will receive a dedicated medical treatment enabling
him to recover from the suffered injury (i.e. a clear and comprehensive rehab program) to be
eventually reintegrated to the rest of the team;
Provide health insurance for the player and proof thereof
Reimburse all medical bills incurred so far for a total of 172 SAR + 1770 TND.
11.
The player informed FIFA that he remained unemployed following the termination of the
contract.
12.
On 16 March 2021, the player lodged a claim before FIFA for breach of contract without just
cause, and requested the following:
- 11 332 USD as outstanding salaries, plus 5% interest p.a. from the due dates;
- 1,465 USD as medical expenses, plus 5% interest p.a. from January 15, 2021. In this respect,
the player provided the following invoices and receipts:
o Invoice from “Saudi German Hospitals”, for an MRI (knee) in the amount of SAR 1,785
(approx. USD 475)
o Invoice from “Saudi German Hospitals”, for the amount of SAR 172 (approx. USD 46);
o “Note d’honoraires” in the amount of “1750,000” from a doctor in Tunisia (if TND,
this would correspond to USD 63);
o Invoice from “Cliniques El Manar” (Tunisia), for the amount of TND 337 (approx. USD
122)
o Invoice from “Precis Labos” for the amount of TND 160 (approx. USD 58).
o Invoice from “Pharmacie Khabthani”, for the amount of TND 166 (approx.. USD 60)
o Invoice from “Saudi German Hospitals” for the amount of SAR 1,539 (approx. USD
410 on file).
- 28,330 USD as compensation for termination without just cause by the Club, plus 5% interest
p.a. from the date of termination on January 15, 2021;
- 5,000 EUR as legal fees
13.
In the alternative, and if art. 10.3 of the contract is deemed as valid, the player requested the
payment of USD 5,666.
14.
In its reply to the claim, the Respondent contested the jurisdiction of FIFA, insofar the parties
accepted to submit the matter to the Saudi Arbitration Center (SSAC) (art. 9.3 of the contract).
15.
In this respect, the Respondent provided a full copy of the Statute of the SSAC.
16.
As to the substance, the Respondent acknowledged that it owed the player the amount of USD
3,222.
17.
Moreover, the club argued that the player did not provide any proof that the club is obliged to
pay medical fees on his behalf.
18.
The club acknowledged that it terminated the contract due to the player’s “poor performance”,
but argued that, following art. 10.3 of the contract, article 17 of FIFA RSTP cannot be applied,
since the employment contract contains a provision by which the parties had beforehand
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agreed upon an amount of compensation payable by either contractual party in the event of
breach of contract.
19.
In application of the aforementioned clause, the club considered that the amount of payable
compensation amounts to USD 5,666.
20.
The club was of the opinion that clause 10.3 of the contract was conventional, fair and
reciprocal as it grants the same rights to the player.
21. In his replica, the claimant reiterated that FIFA was competent to judge the case.
22. In this respect, the player argued that there is no union representing professional soccer players
in Saudi Arabia, which is sufficient to establish that the principle of parity is not respected and
therefore that the criterion of independence cannot be met.
23. Regarding the choice of arbitrators sitting on a panel, the player argued that the principle of
equal representation is not respected either since the choice is made from a list composed
without any influence from the players. The player underlined that Article 28 of the statutes
provided by the Club is clear in this sense since the list is exclusively composed of members in
representation of sports institutions.
24. Finally, the player argued that the principle of free proceedings as established in the FIFA
Standard Rules is not respected, as shown by the numerous references to arbitration costs and
the possibility to apply for legal aid.
25. As the substance, the player underlined that the club acknowledged the termination due to
“poor performance”, and recalled that following the jurisprudence of FIFA and CAS, poor
performance is not a valid reason to terminate a contract.
26. As to the outstanding remuneration, the player acknowledged having received the amounts
mentioned by the Club, and accordingly amended his financial demands for the month of
December 2020, reducing from USD 5,666 to USD 1,332.
27. Consequently, the player amended his claim for outstanding remuneration as follows:
USD 1,332 for December 2020 salary, plus 5% interest p.a. from January 1, 2021.
USD 5,666 for January 2021 salary, plus 5% interest p.a. from February 1, 2021
28. The player insisted in the payment of medical expenses in the amount of USD 1,465, as well as
in the payment of compensation in the amount of USD 28,330 as compensation.
29. Despite being invited to do so, the Respondent failed to provide its final comments.
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II. Considerations of the Dispute Resolution Chamber
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.
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.
2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasized 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, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs.
3. However, the Chamber acknowledged that the Respondent, claimed that the Saudi Sport
Arbitration Center (hereinafter: the SSAC) was competent to deal with the present case.
4. In particular, the Chamber took note that the Respondent argued that the SSAC provides
all principal of fair, parity and impartially and it was the choice of the parties when they
concluded the contract, insofar it was mentioned in art. IX of the contract.
5. In this regard, the Chamber observed that the Claimant argued that the SSAC does not
provide the basic principles of a fair trial such as parity of arms and impartiality, as well
as presenting language and procedural barriers.
6. As a consequence, the Chamber started by acknowledging that the parties did not dispute
that the matter at hand was brought to an alternative dispute resolution process within
football.
7. Taking into account the above, the Chamber emphasized that it was necessary to
ascertain who is competent to decide on the issue within the football-related dispute
resolution system. In other words, the competence of a national deciding body on the
one side and FIFA on the other must be determined.
8. In this regard, the Chamber referred to art. 22 b) of the Regulations, according to which
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. With regard to
the standards to be imposed on an independent arbitration tribunal guaranteeing fair
proceedings, the Chamber referred to FIFA Circular no. 1010 dated 20 December 2005
and the principles contained in the FIFA National Dispute Resolution Chamber (NDRC)
Standard Regulations which came into force on 1 January 2008 (underline added).
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9. In view of the above, the Chamber went on to examine the documentary evidence
presented by the Respondent, i.e. the copy of the “Statute of the Saudi Sport Arbitration
Center” (hereinafter: the SSAC Statute).
10. In this regard, the Dispute Resolution Chamber reminded the parties of the contents of
art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on
the basis of an alleged fact shall carry the burden of proof”.
11. In this respect, the Chamber acknowledged that according to the relevant part of the
SSAC Statute established in its art. 8.2 that “the SSAC jurisdiction shall be applicable only
when the dispute is reported in less than 21 days by the disputing parties through official
channels as defined by the concerned regulation”.
12. The Chamber also considered that the existence a statute of limitations of only 21 days
calculated as from the event giving rise to the dispute, is manifestly short and prejudices
the right of a player to be heard.
13. In addition, the Chamber also observed that the Procedural rules of the SSAS stated the
following:
“10.1 The Party requesting arbitration (Claimant) shall pay the arbitration fees upon
submitting a matter to the SSAC. In case the Claimant requests fast track arbitration, the
Claimant shall pay the fees as prescribed. All the fees are non-refundable.”
14. In the opinion of the Chamber, the non-refundable nature of the arbitration fees may
undermine the rights of the parties to be heard.
15. In sum, the Chamber considered that the Respondent failed to meet its burden of proof
on whether the SSAC effectively guarantees fair proceedings. As a result, the Dispute
Resolution Chamber confirmed that it is competent to deal with the matter at stake.
16. In continuation, the Dispute Resolution Chamber analysed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering the date when the claim was lodged, the January 2020 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at
hand.
17. With the above having been established, the Dispute Resolution Chamber entered into
the substance of the matter. In doing so, it started to acknowledge the facts of the case
as well as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
18. In this respect, the Chamber first noted that, on 4 October 2020, the parties concluded an
employment contract valid as from the date of signature until 3 July 2021.
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19. Subsequently, the Chamber observed that, the player lodged a claim before FIFA for
breach of contract without just cause, noting that, on 14 January 2021, the club sent a
termination letter due to poor performance.
20. On the other hand, the Chamber took note of the Respondent’s position, which
fundamentally acknowledged that it terminated the contract due to the player’s “poor
performance”, but argued that, following art. 10.3 of the contract, article 17 of FIFA RSTP
cannot be applied, since the employment contract contains a provision by which the
parties had beforehand agreed upon an amount of compensation payable by either
contractual party in the event of breach of contract.
21. As a result, the Chamber considered that, in essence, it is uncontroverted that the
Respondent terminated the contract without just cause. In this regard, the Chamber
referred to its well-established jurisprudence according to which an alleged poor
performance of a player could not justify a premature termination of an employment
contract by a club as the assessment of the performance of a player is a subjective
perception which could not be measured on an objective scale and therefore, has to be
considered as inadmissible grounds for premature termination of an employment
contract. Consequently, the Chamber confirmed that the club terminated the contract
without just cause, and that consequently, the player is entitled to compensation.
22. However, before entering into the determination of the due compensation, the Chamber
wished to address the issue on whether, at the date of termination of the contract, there
was any outstanding liability towards the player.
23. In this respect, the Chamber examined the player’s amended request in his replica, by
means of which he requested the amounts of USD 1,332 for the remaining part of
December 2020 and USD 5,666 for his salary of January 2021.
24. In relation to said request, the Chamber examined the arguments and evidence provided
by the Respondent, and noted that it cannot be established that said amounts were
settled.
25. Nevertheless, the Chamber noted that, considering that the contract was terminated on
14 January 2021, the player would be entitled to his pro rata salary for the first fourteen
days of the amounts, i.e. USD 2,558=14/31*5,666.
26. All in all, the Chamber understood that the amounts of USD 1,332 (remaining part of the
salary of December 2020) and USD 2,558 (pro rata salary of January 2021)
27. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant, the
total outstanding amount of USD 3,890, as detailed above.
28. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5%
interest p.a. over said amount as from the due dates.
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29. Additionally, the Chamber further examined the Claimant’s request for 1,465 USD as
reimbursement of medical expenses.
30. In this respect, the Chamber observed that art 4 of the contract stipulated that the player
is entitled, inter alia, to “health insurance”. Thus, the Chamber understood that the
player is in principle entitled to the reimbursement of medical expenses.
31. In addition, the Dispute Resolution Chamber referred the parties of the contents of art. 12
par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of
an alleged fact shall carry the burden of proof”.
32. In application of the aforementioned provision, the Chamber considered that the player
sufficiently justified that he incurred in the related medical expenses, whereas the club
merely argued that there is no evidence that is shall pay said costs.
33. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to reimburse to the Claimant,
the amount of USD 1,465 for incurred medical expenses and as agreed in the contract.
34. Subsequently, the Chamber went on to examine the determination of the payable
compensation to the player.
35. In this respect, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of
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.
36. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contains a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract.
37. In this regard, the Chamber observed that clause 10.3 of the contract stipulated that “3If either party wishes to terminate the contract, the other party will be paid a monthly salary.”
Hence, considering the remuneration of the player (art. 4 of the contract), the Chamber
understood that, as per clause 10.3 of the contract, the player would, in principle, be
entitled to USD 5,666 as compensation for breach of contract without just cause.
38. In relation to said clause, the majority of the Chamber determined that it appears is both
reciprocal and proportionate, i.e. it does not provide an advantage of one party over the
other.
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39. However, on this point, the Member of the Chamber, Mr Michele Colucci, respectfully
expressed his dissent opinion as he considered that according to article 6 of the
employment contract, the club was not allowed to terminate the employment
relationship in case of injury. Furthermore, In order to be valid, a clause like the one at
stake (art. 10.3) not only need to be reciprocal but it must also be proportionate to the
value and to the length of the contract. As a consequence, the proportionality criterion
should be applied in both ways: when the amount determined by the parties is too high
and/or too low. In casu, the club explicitly acknowledges having terminated the contract
without just cause (poor performance of the player) which amounts to using said clause
to circumvent the principle of contractual stability. Finally, the club did not even apply
the clause as the amount was effectively never paid to the player.
40. On account of all of the above-mentioned considerations and the specificities of the case
at hand, the majority of the Chamber decided that the club must pay the amount of USD
5,666 as compensation for breach of contract in the case at hand, as provided in clause
10.3 of the contract.
41. In addition, taking into account the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the aforementioned amount as of the
date of claim, i.e. 16 March 2021.
42. Furthermore, taking into account the previous considerations, the Dispute Resolution
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.
43. In this regard, the Dispute Resolution 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.
44. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.
45. Finally, the Dispute Resolution 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.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mabrouk Jendli, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Ohod, has to pay to the Claimant, the following amount:
- USD 3,890 as outstanding remuneration, plus interest as follows:
- 5% interest over the amount of USD 1,332 as from 1 January 2021 until the date of effective payment;
- 5% interest over the amount of USD 2,558 as from 1 February 2021 until the date of effective payment.
- USD 1,465 as reimbursement for medical expenses.
- USD 5,666 as compensation for breach of contract without just cause, plus 5%
interest p.a. as from 16 March 2021 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 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 of the Regulations on the Status and Transfer of Players.
8. This decision is rendered without costs.
For the Dispute Resolution Chamber:
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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