Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 April 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Daan de Jong (The Netherlands ), member
on the claim presented by the player,
Mahm oud S alm a, Palestine
represented by Mr Emad Hanayneh
as Claimant
against the club,
Al Ahly , Egypt
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 5 January 2019, the Palestinian player, Mr Mahmoud Salma, (hereinafter: the player or
the Claimant) and the Egyptian club, Al Ahly (hereinafter: the club or the Respondent)
signed an employment contract (hereinafter: the contract), valid for three and a half
seasons, i.e. until the end of the season 2021/2022.
2.
According to the contract, the Claimant was entitled to a total amount of USD 438,600, to
be paid as follows:
“First season (2018/2019) amount of $51600 (fifty one thousand six hundred Dollars)
which shall be distributed as follows:
1st Installment: $12900 (twelve thousand nine hundred Dollars) to be paid on 30/1/2019
2nd installment: $6450 (six thousand four hundred fifty Dollars) to be paid on 28/2/2019
3rd installment: $6450 (six thousand four hundred fifty Dollars) to be paid on 30/3/2019
4th installment: $6450 (six thousand four hundred fifty Dollars) to be paid on 30/4/2019
5th installment: $6450 (six thousand four hundred fifty Dollars) to be paid on 30/5/2019
6th installment: $6450 (six thousand four hundred fifty Dollars) to be paid on 30/6/2019
Second season (2019/2020) amount of $103200 (one hundred & three thousand and two
hundred Dollars) which shall be distributed as follows:
1st Installment: $25800 (twenty five thousand eight hundred Dollars) to be paid on
30/7/2019
2nd installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/8/2019
3rd installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/9/2019
4th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/10/2019
5th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/11/2019
6th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/12/2019
7th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/1/2020
8th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 28/2/2020
9th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/3/2020
10th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/4/2020
11th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/5/2020
12th installment: $25800 (twenty five thousand eight hundred Dollars) to be paid on
30/6/2020
Third season (2020/2021) amount of $129000
Fourth season (2021/2022) amount of $154800”
Player Mahmoud Salma, Palestine / Club Al Ahly, Egypt
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3.
By means of a correspondence dated 22 November 2019, the Claimant asked the
Respondent to clarify his “legal situation with the Club”, “to deny the news of the website
that he’s still with the Club” and to “deny the news that he is no longer registered as the
Club’s players”.
4.
Moreover, the Claimant granted the Respondent 15 days to “pay four months salaries July
the amount of 25,800 USD, August amount of 5160 USD, September amount of 5160 USD
and October 2019 amount of 5160 USD with total amount of 41,280 USD”.
5.
On 22 January 2020, the Claimant lodged a claim against the Respondent in front of FIFA.
6.
In his claim, the Claimant explained that on 29 August 2019, he found out from the media
that “he was no longer one the Club’s players for the current season 2019/2020”.
7.
In this context, the Claimant deemed that the Respondent violated FIFA Regulations as it
“removed the Player’s registration from the list of the Club’s list in the EFA and did not
pay for the player his four months payments.”
8.
Furthermore, the Claimant stated that the Respondent never replied to his letter dated
22 November 2019, by which he requested explanations about his legal situation and the
payment of outstanding salaries.
9.
In these circumstances, the Claimant considered that the Respondent terminated the
contract at the moment that it did not register him with the Egyptian Football Association
for the season 2019/2020.
10. In light of the above, the Claimant requested the amount of USD 387,000 as compensation,
plus 5% p.a. as from the due dates of each payment. The Claimant also requested the
imposition of sanctions on the Respondent.
11. In its reply, the Respondent rejected the Claimant’s claim and deemed that it had made all
payments for the 2018/2019 season.
12. In addition, the Respondent argued that at the end of the 2018/2019 season, the Claimant
expressed his wish to return to his home country, which resulted in the parties mutually
agreeing on the termination of the contract. In this context, the Respondent stated that
the Claimant immediately left the country, making it impossible to contact him in order to
conclude a written and signed termination agreement.
13. Moreover, the Respondent stressed that it never received any correspondence from the
Claimant, as the email address used by the latter did not correspond to any of the
Respondent’s email addresses.
Player Mahmoud Salma, Palestine / Club Al Ahly, Egypt
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14. Finally, the Respondent argued that the Claimant’s de-registration was an obvious
consequence of the mutual termination agreement.
15. After being requested, the Claimant informed FIFA that he concluded an employment
contract with the Palestinian club, Al Sadaqa SC, valid as from 11 October 2019 for the
entire duration of the 2019/2020 season, pursuant to which he was entitled to a
remuneration of USD 2,000 “for the remainder of the first round of the current season
2019/2020” and “USD 4,000 for the second round of the current season 2019/2020, paid
upon completion of the sports season”.
16. Furthermore, the Claimant informed FIFA that he had also signed an employment contract
with the Jordanian club, Aqaba Youth Club, valid as from 16 March 2020 until “the end of
the football season 2020”, according to which he was entitled to a total remuneration of
USD 6,000.
II. Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the
Chamber) analysed whether it was competent to deal with the case at hand. In this respect,
the Chamber took note that the present matter was first submitted to FIFA on 22 January
2020. Consequently, the November 2019 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 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 and 2 in combination with art. 22 lit.
b) of the Regulations on the Status and Transfer of Players (March 2020 edition), it is
competent to decide on the present litigation, which concerns an employment-related
dispute with an international dimension between a Palestinian player and an Egyptian
club.
3.
Furthermore, the DRC analysed which edition of the 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 (March 2020 edition) and considering that the
present matter was submitted to FIFA on 22 January 2020, the January 2020 edition of said
Regulations is applicable to the present matter as to the substance.
4.
With the above having been established, the 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 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.
Player Mahmoud Salma, Palestine / Club Al Ahly, Egypt
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5.
In this respect, the Chamber firstly acknowledged that it was undisputed that the Claimant
and the Respondent had signed an employment contract on 5 January 2019, valid for three
and a half seasons, i.e. until the end of the season 2021/2022. In continuation, the Chamber
noted that it was also undisputed that the Claimant was entitled to financial remuneration
as set out at point I. 2. above.
6.
What is more, the Chamber further noted that on 22 November 2019, the Claimant asked
the Respondent to provide him with information about his “legal situation with the Club”,
“to deny the news of the website that he’s still with the Club”, to “deny the news that he
is no longer registered as the Club’s players” and finally to pay him the outstanding
amounts corresponding to “four months salaries July the amount of 25,800 USD, August
amount of 5160 USD, September amount of 5160 USD and October 2019 amount of 5160
USD with total amount of 41,280 USD”.
7.
Summarising the parties’ respective positions in this dispute, the members of the Chamber
noted that the Claimant, on the one hand, considered that the Respondent terminated the
contract at the moment that it did not register him with the Egyptian Football Association
for the season 2019/2020, whilst on the other hand, the Respondent affirmed that the
parties had mutually terminated the contract, following the Claimant’s wish to return to
his home country, and that the Claimant’s de-registration was a simple consequence
thereof. In this regard, the Chamber further noted that the Respondent stated that it was
impossible for the parties to formalise in writing the termination agreement, considering
that the Claimant immediately left Egypt.
8.
In view of the foregoing, the Chamber established that the main issue to be analysed in
the present case is whether the contract was mutually terminated by the parties at the end
of the 2018/2019 season, or if it was in fact unilaterally and prematurely terminated by the
Respondent at the moment when it decided to de-register the Claimant for the 2019/2020
season. The Chamber deemed that it shall then decide on the consequences, if applicable.
9.
In this respect, the members of the Chamber deemed it appropriate to recall the basic
principle of burden of proof, as stipulated in art. 12 par. 3 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.
10. In this context, the Chamber noted that the Claimant deemed that the Respondent
terminated the contract at the moment that it did not register him with the Egyptian
Football Association for the season 2019/2020 and that he should, as a result, be entitled
to compensation for breach of contract.
11. On the other hand, the Chamber thoroughly analysed the position of the Respondent,
which deemed that it had made all payments for the 2018/2019 season, that the contract
Player Mahmoud Salma, Palestine / Club Al Ahly, Egypt
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had been mutually terminated between the parties and that the de-registration of the
Claimant was only a consequence of the foregoing.
12. In this respect, the Chamber noted that the Claimant first complained on 22 November
2019 to the Respondent of his legal situation at the club, in particular of his de-registration
from the team for the 2019/2020 season.
13. In continuation, the Chamber observed that on 11 October 2019, the Claimant signed an
employment contract with the Palestinian club, Al Sadaqa SC, valid as from the date of
signature for the entire duration of the 2019/2020 season.
14. In this context, the Chamber emphasised that the Claimant signed his employment contract
with the club Al Sadaqa SC a month before he first contested his de-registration and
requested the Respondent to pay outstanding amounts. In other words, the Claimant was
already contractually bound to a third club when he first contacted the Respondent,
contesting his situation and requesting payments.
15. In addition, the Chamber took note of the position of the Claimant, according to which he
found out on 29 August 2019, that “he was no longer one the Club’s players for the current
season 2019/2020”. As such, the Chamber underlined that the Claimant had waited
approximately 3 months before contacting the Respondent to contest his de-registration
from the team.
16. Furthermore, the members of the DRC highlighted that based on the documents on file,
all outstanding remuneration until the end of the season 2018/2019 appeared to have been
paid to the Claimant.
17. In light of the very specific circumstances of the present matter and even though none of
the parties appears to have terminated the contractual relationship in writing, the
Chamber was of the opinion that both parties were no longer interested in, or in a position
to uphold a continuation of the contractual relationship.
18. Therefore, the DRC concluded that it seems, based on the information and documentation
provided by the parties in the course of the present proceedings, that the parties did in
fact mutually terminate the contract de facto at the end of the 2018/2019 season.
19. Consequently, the DRC decided that the claim of the Claimant for the payment of
compensation must be rejected, considering that it was not established that the
Respondent had unilaterally and prematurely terminated the contract.
20. In view of all the above, the Dispute Resolution Chamber concluded its deliberations in the
present matter by establishing that the claim lodged by the Claimant is rejected.
Player Mahmoud Salma, Palestine / Club Al Ahly, Egypt
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III. Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Mahmoud Salma, is rejected.
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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 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). 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.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Mahmoud Salma, Palestine / Club Al Ahly, Egypt
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