Labour Disputes
Texto da decisão
REF. FPSD-9518
Decision of the
Dispute Resolution Chamber
passed on 7 July 2023
regarding an employment-related dispute concerning
the player OTHMEN SAIDI
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
André dos Santos MEGALE (Brazil), Member
Khadija TIMERA (Senegal), Member
CLAIMANT:
Othmen Saidi, Tunisia
Represented by Anis Ben Mime
RESPONDENT:
Al Nahda, Saudi Arabia
Represented by Ali Abbes and Mr. Mohamed Rokbani
pg. 2
REF. FPSD-9518
I. Facts of the case
1.
On 13 January 2023, the Saudi Arabian club, Al Nahda (hereinafter: the club or the
Respondent) sent to the Tunisian player, Othmen Saidi (hereinafter: the player or the
Claimant) an offer (hereinafter: the offer).
2.
The offer contained the following information:
-
Duration: 4 months.
The starting date would be on 15 January 2023 and the end dated would be on 15 April
2023.
Payment method: USD 20,000, USD 10,000 at the signature of the contract and USD
10,000 as monthly salary.
The club would provide accommodation and transport.
3.
It is to be noted that the specimen of the offer provided by the player did not contain any
designated space for the player’s signature or expression of acceptance.
4.
On 18 January 2023, the player underwent a medical examination by the club’s staff.
5.
On 19 January 2023 at 17:29 Saudi Arabian local time, via the electronic application
WhatsApp, the club sent the player a copy of the medical report.
6.
On 19 January 2023 at 17:57 Saudi Arabian local time, the player sent an email to club
accepting the offer proposed by the club.
7.
On 28 January 2023, the club sent the player following correspondence : “Je vous informe
que le joueur a été mis en examen médical et il s'est avéré qu'il souffre d'une blessure qu'il n'a
pas déclaré au club les procédures d'enregistrement n'ont pas été accomplies avant la clôture
de la période d'enregistrement au 28/01/2023. Le joueur a quitté le KSA”.
Freely translated by FIFA
“[the Respondent] informed [the Claimant] that the player passed a medical examination, and
it has been found that he has an injury which he has not declared to the club, the registration
procedures were not completed before the closure of the registration period on 28/01/2023. The
player has left Saudi Arabia”.
8.
On 31 January 2023, the player sent a termination notice to the club, indicating that
following the correspondence from the club on 28 January 2023, the player considered that
the club terminated the contract on that date.
pg. 3
REF. FPSD-9518
9.
On the same date, 31 January 2023, the player signed an employment contract with the
Tunisian club Olympique de Beja valid as from 30 January 2023 until 30 June 2023, including
a monthly gross salary of TND 2,500.
II. Proceedings before FIFA
10. On 7 March 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
11. The player claimed having concluded with the club a valid employment contract which was
accepted by the player on 18 January 2023 and argued that the club breached the contract
and accordingly, he is entitled to compensation.
12. With regards to the termination, the player considered that the letter sent by the club on
28 January 2023 should be considered as a unilateral termination of the contract and that
on 31 January 2023, the player sent a letter to corroborate the club’s abusive behaviour.
Additionally, the Player stated that medical conditions cannot be considered as a valid
reason to terminate the contract.
13. The Player requested the following relief:
-
USD 10,000 as outstanding salary plus 5 % interest p.a.
USD 60,000 as compensation for breach of contract plus 5% p.a.
To apply sporting sanctions on the club.
b. Position of the Respondent
14. In its reply, the Respondent requested FIFA to reject the claim.
15. According to the club following the sending of the offer on 13 January 2023, the player did
not sign the offer, and only after he passed that he failed the medical exams, he accepted
the offer and therefore, in accordance with the club the offer became null and avoid
“especially that according to FIFA DRC the essential negocii of an agreement to be considered as
a binding contract is the signature of two parties”.
16. The Club further concluded that “the execution of the contract had never started due to the
fact that the player did never sign any offer only after that he knew that he fails to succeed in
the medical examination”.
17. Alternatively, if the DRC concludes that “the respondent has committed any fault or
negligence, quod non, and that the contract is valid, it should be highlighted that the players
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REF. FPSD-9518
acted with bad faith as established above and contributed more to the early termination of the
contract and therefore no partly shall be entitled to a compensation”.
18. Alternatively, if the DRC concludes that: “the club bear any part of responsibility and that
player is entitled to any compensation, it shall be mitigated and consider that the player assume
the big part of responsibility due to the facts that we already described
- The contract cannot be executed due to the injury of the player.
- The player signed the offer only after that he was informed of the result of the medical
test and that he cannot provide any service for the club which proves his clearly bad faith”.
19. The Club requested the following relief:
“Essentially: Reject the claim of the claimant
Alternatively: consider that the claimant is not entitled to receive any compensation.
Most Alternatively: consider the player bears at least 75 % of the cause of termination
according to article 44 of the Swiss Code of Obligations”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. 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 7 March 2023 and submitted
for decision on 7 July 2023. 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.
21. Subsequently, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (May 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
Tunisia and a club from Saudi Arabia.
22. 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 (May 2023 edition), and
considering that the present claim was lodged on 7 March 2023, the October 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
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REF. FPSD-9518
23. 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
24. The 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
25. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club for alleged
non-execution of a contract by the club.
26. In brief, while the player claimed that he had a valid and binding contract with the club,
consisting of the offer sent by the club on 13 January 2023 and accepted by him on 19
January 2023, the club deems that there was not a contract as the player failed his medical
exams and he only accepted the offer after the club informed him about his injury.
27. Subsequently, the Chamber confirmed that the main issue in the present claim is to
determine whether the offer can be considered as a valid and binding employment
contract. In doing so, the Chamber started by recalling its well-established jurisprudence
which dictates that, in order for an employment contract to be considered as valid and
binding, apart from the signature of both the employer and the employee (or the
corresponding proof of consent of both parties), it should contain the essentialia negotii of
an employment contract, such as the parties to the contract and their role, the duration of
the employment relationship and the remuneration payable by the employer to the
employee.
28. From the arguments of the parties and the documentation on file, the Chamber was able
to establish that:
-
The offer was sent on 13 January 2023.
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REF. FPSD-9518
-
The offer contained the starting date of the contract: 15 January 2023.
-
The offer did not contain any designated space for the player’s signature or expression
of acceptance.
-
The contract, as described in the offer, did not establish any condition in order for it to
be accepted. Therefore, the argumentation that the player did accept the offer only
after being informed about his injury did not have any impact on the acceptance or not
of the offer.
-
The player accepted the offer 4 days after the supposed starting date of the contract.
-
In accordance with the letter sent by the club on 28 January 2023, it can be retrieved
that the club informed the player that he had an injury, and the registration procedure
would not continue; however, it cannot be retrieved that a termination of the alleged
contract took place, or that the parties had an employment relationship.
-
On 31 January 2023, the player sent a termination notice to the club and signed a new
contract with the Tunisian club, valid as from 30 January 2023.
29. Based on the foregoing, the Chamber concluded that the acceptance of the offer was not
subject to any condition, such as a medical examination. However, the Chamber stressed
that in accordance with the player’s conduct, the contract was not concluded considering
that (i) there is not acceptance of the offer by the player prior the starting date of the
contract, on 15 January 2023, (ii) since the acceptance of the offer was sent 4 days after the
contract’s proposed starting date, prior to said date the player was not in agreement with
the contract and (iii) on the same date that the player sent a notification of the termination
of the alleged contract he already signed a new contract which was valid as from 30 January
2023, which denotes the player’s lack of interest in pursuing the contract.
30. On the basis of the foregoing, the Chamber concluded that there was not a valid and biding
contract between the parties and therefore the player’s claim lacked any contractual basis
whatsoever. Accordingly, the Chamber found that the claim must be entirely rejected.
d. Costs
31. 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.
32. 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.
pg. 7
REF. FPSD-9518
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Othmen Saidi, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-9518
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
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