Labour Disputes
Texto da decisão
REF. FPSD-12101
Decision of the
Dispute Resolution Chamber
passed on 11 January 2024
regarding an employment-related dispute concerning
the player Abdeljalil Medioub
BY:
Frans de Weger (the Netherlands), Chairperson
Michele Colucci (Italy), member
Dana Mohamed Al-Noaimi, member
CLAIMANT:
Abdeljalil Medioub, France
Represented by Mr Loizos Hadjidemetriou
RESPONDENT:
Aris Limassol, Cyprus
Represented by Lysandrou, Florou LLC
pg. 2
REF. FPSD-12101
I. Facts of the case
1.
On 31 August 2022, the French player Abdeljalil Medioub (hereinafter: Claimant or player)
and Cypriot club Aris Limassol (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from the date of signature until 30 June 2025.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
remuneration:
-
Between 31 August 2022 and 31 December 2022, net monthly salary of EUR 20,000;
Between 1 January 2023 and 30 June 2023, net monthly salary of EUR 20,000;
Between 1 July 2023 and 31 December 2023, net monthly salary of EUR 16,666.67;
Between 1 January 2024 and 30 June 2024, net monthly salary of EUR 16,666.67;
Between 1 July 2024 and 31 December 2024, net monthly salary of EUR 16,666.67;
Between 1 January 2025 and 30 June 2025, net monthly salary of EUR 16,666.67.
3.
On the same date, the parties concluded a supplementary agreement (hereinafter: the
Supplementary Agreement) in accordance with which some additional terms were included
into the Contract.
4.
Pursuant to the Supplementary Agreement, the Respondent undertook to pay the Claimant
the following amounts as part of his remuneration:
-
-
EUR 375,000 net as sign-on fee, payable in three instalments:
o EUR 175,000 net upon signature of the Supplementary Agreement;
o EUR 100,000 net by no later than 20 July 2023;
o EUR 100,000 net by no later than 20 July 2024.
10% of amounts received by the Respondent as a result of the player’s transfer to a
third club;
EUR 2,000 net as monthly housing allowance.
5.
On the same date still, the parties signed a “standard employment contract / annexe”
(hereinafter: the Annexe) in accordance with which further terms of employment were
adduced to the Contract.
6.
According to art. 13 of the Annexe, the following was established:
“Any employment dispute between the club and the player shall fall under the exclusive
jurisdiction of the National Dispute Resolution Chamber if the CFA and shall be resolved
according to the applicable regulations of the CFA.”
7.
At the beginning of the 2023-2024 season, the Respondent allegedly informed the player
orally that he is no longer part of the club’s plans for the season, and that he would not
participate in pre-season training.
pg. 3
REF. FPSD-12101
8.
On 28 June 2023, the Claimant sent a letter to the Respondent, requesting to be
reintegrated into the squad and that exclusion from the training camp constituted a severe
breach of contract.
9.
Thereafter, according to the Claimant, the Respondent allowed the Claimant to return to
the training camp and resume his activity under the Contract as before.
10. On 10 August 2023, the Respondent unilaterally terminated the Contract.
11. On 11 August 2023, the Claimant sent a letter to the Respondent stating as follows:
-
The termination letter did not contain any justification for the termination of the
Contract;
The Claimant rejected the decision to terminate the Contract;
The Claimant considered the termination of the Contract without just cause.
12. On 9 September 2023, the Claimant signed an employment contract with the Algerian club
USMK (hereinafter: the New Club) valid as from the date of signature until 30 June 2025
(hereinafter: the New Contract)
13. In accordance with the New Contract, the Claimant is entitled to a net monthly salary of
DZD 187,500.
II. Proceedings before FIFA
14. On 6 October 2023, 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. In his claim, the player argued that the Respondent terminated the Contract unilaterally
and without just cause, failing to provide any explanation for the dismissal whatsoever.
16. The Claimant specified that he contacted the Respondent to understand why the Contract
had been terminated, as well as trying, in good faith to negotiate a settlement agreement,
to no avail.
17. Thus, the Claimant requested a net compensation in the amount of EUR 529,333.37 as well
as 5% annual interest based on the Respondent’s unlawful breach of contract.
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REF. FPSD-12101
b. Position of the Respondent
18. In its reply, the Respondent Challenged the competence of FIFA, arguing in detail that the
CFA is exclusively competent to handle the present dispute.
19. The Respondent specified that the Cypriot NDRC is fairly composed and meets the
requirements of equal representation of Circular No. 1010.
20. Moreover, the Respondent listed in detail each of the requirements under the respective
Circular Letter and addressed how the Cypriot NDRC meets these respective requirements
with accompanying evidence:
-
Parity when constituting the arbitral tribunal
Independent and impartial tribunal
Principle of a fair hearing
Right to contentious proceedings
Right to equal treatment
Access to justice (cf. financial barriers / cost of proceedings).
21. As to the merits, the Respondent outlined that the claim of the Respondent is excessive, as
the Claimant signed a new contract and therefore mitigated his damages. Furthermore,
the Respondent argued that the accommodation allowance should not be considered for
the compensation, since the Claimant “incurred no loss” after leaving Cyprus.
22. The Respondent, therefore, requested for the claim to either be rejected or the amount of
compensation to be reduced.
c. Replica of the Claimant
23. In his replica, the Claimant insisted on the jurisdiction of FIFA, arguing that the Cypriot
NDRC does not comply with the requirements of a properly constituted Tribunal.
24. Particularly, the Claimant argued that the players’ association is not equally represented,
nor involved in the composition process, thus falling short of the standard set by Circular
1010.
25. As to the merits, the Claimant largely reiterated his arguments from the first submission.
26. In conclusion, the Claimant insisted on his first request for relief.
pg. 5
REF. FPSD-12101
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 6 October 2023 and submitted
for decision on 11 January 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.
28. 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 (March 2023 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 player from
France and a club from Cyprus.
29. Furthermore, the Chamber took note of the fact that the Respondent contested the
competence of the Football Tribunal to adjudicate the present dispute in favour of the
National Dispute Resolution Chamber of Cyprus) (hereinafter: the NDRC of Cyprus), alleging
that the latter is competent to deal with any dispute deriving from the relevant
employment contract, in accordance with art. 13 thereunder. Equally, the Chamber noted
that the Claimant insisted on the jurisdiction of FIFA.
30. Taking into account all the above, the Chamber emphasised that in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by an independent arbitration tribunal that has been established at
national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
31. Thus, the Chamber pointed out that it should first analyse whether the employment
contract at the basis of the present dispute contained a clear and exclusive jurisdiction
clause in favour of the NDRC of Cyprus.
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REF. FPSD-12101
32. In this respect, the Chamber recalled the wording of art. 13 of the Contract, according to
which the parties agreed that “any employment dispute between the club and the player shall
fall under the exclusive jurisdiction of the National Dispute Resolution Chamber of the CFA and
shall be resolved according to the applicable regulations of the CFA.”
33. Having analysed the wording of said provision, the Chamber firstly held that it is sufficiently
clear and exclusive in favour of the competence of the Cypriot NDRC.
34. Having established the foregoing, the Chamber turned its attention to the further prerequisites for establishing the competence of a NDRC. The Chamber namely referred to
principle of equal representation of players and clubs and underlined that this principle is
one of the very fundamental elements to be fulfilled, in order for a national dispute
resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the
Regulations on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well as
in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as
follows: “The NDRC shall be composed of the following members, who shall serve a fouryear renewable mandate: a) a chairman and a deputy chairman chosen by consensus by
the player and club representatives (…); b) between three and ten player representatives
who are elected or appointed either on proposal of the players’ associations affiliated to
FIFPro, or, where no such associations exist, on the basis of a selection process agreed by
FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA
Circular no. 1010 states the following: “The parties must have equal influence over the
appointment of arbitrators. This means for example that every party shall have the right to
appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration
tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group
that is represented must be able to exercise equal influence over the compilation of the
arbitrator list”.
35. In respect of the above, the Chamber went on to examine the documentation on file as
well as the parties’ submissions.
36. In this regard, and to significant effect, the Chamber noted that the Claimant had
corroborated by virtue of a letter from the Cypriot representative of FIFPro (the Pancyprian
Players’ Association) that the NDRC failed to meet the principle of “equal representation”.
More specifically, such players’ union was not adequately involved during the composition
of the NDRC, as well as being excluded from the drafting of the national regulatory
framework and procedural rules of the NDRC in question.
37. The Chamber considered such line of argument, despite the detailed argumentation of the
Respondent, convincing, to the extent of critically undermining the compliance of said body
with the requirements set out in Circular No. 1010.
38. The Chamber wished to also point out – for completeness’ sake – that such assessment
was in line with further recent decisions in said matter, which made reference to the
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REF. FPSD-12101
identical framework of the NDRC and the very same letter submitted by the Pancyprian
Players’ Association.
39. Therefore, the Chamber was of the opinion that the burden of proving the NDRC’s
compliance with the necessary principle of equal representation of players and clubs was
not met by the Respondent.
40. Consequently, it rejected the objection to the competence of FIFA to deal with the present
dispute, and concluded that the Football Tribunal is competent to consider the matter as
to the substance, according to art. 22 par. 1 lit. b) of the Regulations on the Status and
Transfer of Players.
41. 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 (March 2023 edition), and
considering that the present claim was lodged on 03 April 2023, the March 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
42. 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
43. 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
44. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the basis of the present dispute concerned the
lawfulness of the contractual termination by the Respondent.
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REF. FPSD-12101
45. In this context, the Chamber acknowledged that its task was to determine whether, based
on the evidence and submissions on file, the Respondent had a just cause to terminate the
Contract prematurely, and consequently, whether or not the latter is to be held liable for
compensation for a potential breach.
46. The Chamber firstly wished to recall the parties’ submissions, starting with the Claimant,
who argued that the Respondent terminated the Contract without just cause, providing no
valid justification or prior notice, thus giving rise to substantial bad faith.
47. Conversely, the Chamber noted that the Respondent had not contested the claim as to the
merits at all – merely pointing out that the Claimant’s compensation should be reduced in
light of any new employment contract.
48. Prior to evaluating these arguments and evidence on file, the Chamber recalled the
wording of art. 13 par. 5 of the Procedural Rules, in accordance with which a party that
wishes to rely on a certain fact bears the burden of proving its veracity.
49. Equally, the Chamber referred to its longstanding jurisprudence, in accordance with which
a premature termination of an employment contract, in cases not concerning overdue
payables, must be an ultima ratio measure. That is, where more lenient measures than
terminating the contract are available to the parties to remedy their relationship, such
measures must be readily used. Only breaches of contract of a certain severity or
consistency permit the early termination of a contract.
50. Having set out the above, the Chamber was able to establish that the Respondent, by not
only failing to provide a justification for the premature contractual termination in the
termination letter, but equally not providing any argumentation to this effect in the current
proceedings, failed to meet the burden of proving that the termination of the Contract had
indeed resulted as an ultima ratio measure.
51. In light of the above, the Chamber concluded that the Contract was terminated by the
Respondent without just cause on 10 August 2023.
ii. Consequences
52. 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.
53. The Chamber observed that the total – uncontested – amount of outstanding remuneration
at the time of termination of the Contract amounted to the remainder of the sign-on fee
instalment due on 20 July 2023, in the amount of EUR 50,000 net, as well as one instalment
of accommodation allowance of EUR 2,000 net.
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REF. FPSD-12101
54. Consequently, in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent must pay the Claimant the outstanding
remuneration of EUR 52,000.
55. Furthermore, the Chamber decided that the Respondent must also pay interest applicable
on the above amounts at the annual rate of 5% as from the following dates:
-
On the amount of EUR 50,000 net, as from 21 July 2023 until the date of effective
payment;
-
On the amount of EUR 2,000 net, as from 1 August 2023 until the date of effective
payment.
56. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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.
57. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained 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. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
58. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player 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.
59. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the Contract,
as well as the Agreement, from the date of its unilateral termination until its end date.
Consequently, the Chamber concluded that the amount of EUR 529,333.41 net (i.e. the
residual value of both the Contract, or 23 x EUR 16,666.67 net (salary) plus 23 x EUR 2,000
net (accommodation) between August 2023 and June 2025 plus EUR 100,000 net sign-on
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REF. FPSD-12101
fee instalment due on 20 July 2024) serves as the basis for the determination of the amount
of compensation for breach of contract.
60. In continuation, the Chamber verified as to 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 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.
61. Indeed, the Claimant had found new employment with the New Club. In accordance with
the New Contract, the Claimant had been entitled to receive a monthly salary of
DZD 187,000 net, amounting to approx. EUR 1,391 net.
62. Consequently, the Chamber determined, in the overlapping period between the Contract
and the New Contract, the Claimant had been entitled to – and therefore mitigated his
damages by – a total amount of EUR 30,602 net.
63. With this established, the Chamber went on to recall the wording of art. 17 par. 1 lit. b),
pursuant to which a player is entitled to receive additional compensation in situations
where he himself has terminated the Contract, on account of outstanding remuneration.
64. In the case at hand, the Chamber observed, the Respondent had been the one to terminate
the Contract – thus precluding the Claimant from claiming any additional compensation in
line with the previous provision.
65. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 498,731.41 net to the player (i.e. the residual value of the Contract, minus the
mitigated amount), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
66. Furthermore, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 11 August 2023 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
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REF. FPSD-12101
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 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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REF. FPSD-12101
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Abdeljalil Medioub.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Aris Limassol, must pay to the Claimant the following amount(s):
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 21 July 2023
until the date of effective payment;
- EUR 2,000 net as outstanding remuneration plus 5% interest p.a. as from 1 August 2023
until the date of effective payment;
- EUR 498,731.41 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 11 August 2023 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 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 of the ban shall
be of up to 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.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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