Labour Disputes
Texto da decisão
REF FPSD-5765
Decision of the
Dispute Resolution Chamber
passed on 9 June 2022
regarding an employment-related dispute concerning the player Ait Malek
Sassi
BY:
Frans de Weger (the Netherlands), Chairperson
Michele Colucci (Italy), member
Iñigo Riestra (Mexico), member
CLAIMANT:
Ait Malek Sassi, Tunisia
Represented by Mr Slim Boulasnem
RESPONDENT:
Eastern Company SC, Egypt
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I. Facts of the case
1.
On 5 October 2021, the Tunisian player Ait Malek Sassi (hereinafter: the Claimant), and the
Egyptian club, Eastern Company SC (hereinafter: the Respondent) signed an employment
contract (hereinafter: the First Contract) valid as from the date of signature until the end
of the 2021-2022 season.
2.
In accordance with the information available in the Transfer Matching System (TMS), the
season 2021/2022 runs as from 25 September 2021 until 30 August 2022.
3.
In accordance with the First Contract, the Respondent undertook to pay to the Claimant
inter alia a total remuneration of USD 30,000, payable in ten monthly instalments of
USD 3,000 on the first day of the following respective month.
4.
On 23 January 2022, the Respondent sent the Claimant (hereinafter: the Parties) the
second employment contract (hereinafter: the Second Contract), valid as from
1 February 2022 until the end of the 2021-2022 season.
5.
The Claimant allegedly signed the Second Contract and returned it to the Respondent,
with the latter failing to provide the former with a copy thereof.
6.
In accordance with the Second Contract, the Respondent undertook to pay the Claimant
inter alia a total remuneration of USD 42,800 payable in one instalment of USD 10,700
due on 1 February 2022 and 6 subsequent instalments of USD 5,350, each due on the first
day of the following respective month.
7.
By correspondence via WhatsApp dated 2 February 2022, the Respondent communicated
to the Claimant that it would pay the Claimant his salary punctually if the latter gave his
passport in exchange. The Claimant rejected this proposal on the same day.
8.
By correspondence dated 15 March 2022, the Claimant put the Respondent in default of
payment of USD 21,250. The Claimant outlined that this amount corresponds to the prorata amount of five monthly salaries of USD 4,250 under the Second Contract for the
period between October 2021 – the beginning of the Parties’ contractual relationship –
and February 2022, given that said Contract acted as a replacement of the First Contract.
The Claimant set a time limit expiring on 30 March 2022 in order for the Respondent to
remedy the default. In this correspondence, the Claimant also requested that the
Respondent provides a copy of the Second Contract signed by both Parties, as it failed to
do so as of the date of said default notice.
9.
The default notice remained unanswered, but the Claimant alleged that the Sporting
Director of the Respondent attempted to exercise undue influence on the Claimant by
threatening to terminate the lease to his apartment.
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10. By correspondence dated 3 April 2022, the Claimant unilaterally terminated the Second
Contract.
II. Proceedings before FIFA
11. On 14 June 2022, 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
12. According to the Claimant, the Respondent failed to pay several monthly instalments
under the First Contract, as well as failing to pay the first two monthly instalments under
the Second Contract, even after being put in default and being granted a 15-day deadline
to comply with its financial obligations, thereby enabling him to terminate the contractual
relationship with just cause.
13. The requests for relief of the Claimant, as amended, were the following:
14. The Claimant primarily requested outstanding remuneration in the amount of
USD 28,050, corresponding to four monthly salaries of USD 3,000 each under the First
Contract for the period between October 2021 and January 2022, as well as the first two
instalments under the Second Contract of USD 10,700 and USD 5,350, payable on
1 February 2022 and 1 March 2022 respectively.
15. With regards to interest, the Claimant requested 5% p.a. as from the due dates of the
respective instalments until the date of effective payment.
16. The Claimant also primarily requested compensation for breach of contract without just
cause in respect of the Second Contract in the amount of USD 26,750, corresponding to
the residual value of the Second Contract, calculated as five monthly salaries of USD 5,350
each.
17. Furthermore, with regards to interest, the Claimant requested 5% p.a. as from
3 April 2022 (the date of termination) until the date of effective payment.
18. Moreover, the Claimant requested additional compensation in the amount of USD 36,685,
corresponding to six monthly salaries, on account of allegedly abusive behaviour by the
Respondent.
19. Subsidiarily, if the Chamber were to consider that, based on the fact that the Claimant
was unable to submit a signed copy of the Second Contract as evidence, the First Contract
shall prevail, the latter requested outstanding remuneration in the amount of USD 18,000,
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corresponding to six monthly salaries of USD 3,000 each for the period of October 2021
until March 2022.
20. In this respect, the Claimant requested interest of 5% p.a. on said outstanding
remuneration, as from the due dates of the respective instalments until the date of
effective payment.
21. Furthermore, the Claimant subsidiarily requested compensation for breach of contract in
the amount of USD 12,000, corresponding to the residual value of the First Contract as
from the date of termination.
22. Additionally, the Claimant requested interest on said compensation at 5% p.a. as from
3 April 2022 (the date of termination) until the date of effective payment.
23. Moreover, the Claimant requested additional compensation in the amount of USD 18,000,
corresponding to six monthly salaries, on account of allegedly abusive behaviour by the
Respondent.
24. Lastly, the Claimant also requested sporting sanctions in the shape of a ban to register
new players for two registration periods, in line with art. 17 par. 4 of the Regulations
Governing the Status and Transfer of Players.
b. Position of the Respondent
25. The Respondent rejected the claim in its entirety, arguing as follows:
26. According to the Respondent, the Claimant has rebelled against his employer by refusing
to receive his salary on purpose, in order to be able to terminate the contractual
relationship.
27. Furthermore, the Respondent also submitted that it provided the Claimant with his full
financial rights and match bonuses, as well as a place of residence to live in.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 14 April 2022 and submitted
for decision on 9 June 2022. Taking into account the wording of art. 34 of the October
2021 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
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Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
29. 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 2022 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
Tunisian player and an Egyptian club.
30. 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 2022), and
considering that the present claim was lodged on 14 April 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
31. 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 TMS.
c. Merits of the dispute
32. 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
33. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Parties strongly dispute not only the payment
of certain financial obligations by the Respondent, but also which contract is the valid and
binding document in force, forming the basis of the dispute at hand.
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34. To begin with, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the Parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
35. In this respect, the Chamber took note of the fact that the validity of the First Contract, as
well as the fact that the salaries due to the Claimant thereunder had remained unpaid,
was uncontested between the Parties.
36. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt
servanda, which in essence means that agreements must be respected by the Parties in
good faith, the Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the First Contract concluded on 5 October 2021.
37. With regards to the validity of the Second Contract, the Chamber acknowledged that it
was its task to determine whether said contract was valid and binding, for the purposes
of calculating the outstanding remuneration and compensation payable by the
Respondent to the Claimant.
38. In this respect, 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, 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.
39. In casu, after a thorough analysis of the documentation on file, the Chamber concluded
that all such elements were included in the document filed by the Claimant. In other
words, the Chamber understood that the legal document concluded by the Parties
(i.e., the Second Contract), indeed included all the relevant information at the basis of the
employment relationship between the contractual parties. Specifically, the Second
Contract provides for the duration of the employment relationship and the remuneration
payable to the Claimant. Moreover, it clearly stipulates that the Claimant is employed as
a footballer with the Respondent.
40. Furthermore, the Chamber noted that the copy of the Second Contract submitted by the
Claimant in the proceedings of the matter at hand was not signed by either party. In this
respect, the Respondent, being accused by the Claimant of having withheld the signed
copy of the Second Contract, has neither contested the validity of said Contract, nor
provided a copy thereof upon request.
41. Additionally, by arguing in its reply to the claim that the Claimant refused to accept checks
corresponding to his salary under the Second Contract in order to be able to terminate
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the contractual relationship, the Respondent thereby acknowledged the existence and
validity of said Contract. The Chamber, therefore, concluded that the various elements
set out above sufficiently establish the mutual intention of the Parties to enter into a
binding agreement.
42. Thus, the Chamber concluded that the Second Contract is, in fact, a valid and binding
employment contract and shall be considered in the case at stake, as the contractual basis
of the present dispute.
43. Furthermore, the Chamber concluded that, as a result of the Second Contract being a
valid and binding agreement, it superseded the First Contract as from the date of its
signature, 23 January 2022.
44. Given the above, the Chamber underlined that the Claimant was entitled not only to
outstanding salaries under the First Contract, but also to any salaries that had remained
outstanding under the Second Contract and, provided he had just cause to terminate the
contractual relationship, compensation.
45. The foregoing having been established, the Chamber went on to consider the justice of
the early termination of the Second Contract by the Claimant, based on the alleged nonpayment of certain financial obligations by the Respondent as per the Second Contract,
in accordance with art. 14bis of the Regulations.
46. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
47. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the Parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of
the Regulations had in fact been fulfilled.
48. The Chamber noted that the Claimant submitted not having received the first two
instalments under the Second Contract for February 2022 and March 2022. Furthermore,
the Chamber noted that the Claimant has provided written evidence of having put the
Respondent in default on 15 March 2022, i.e. at least 15 days before unilaterally
terminating the Second Contract on 3 April 2022, for the outstanding amounts due under
the Second Contract.
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49. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the Second Contract. In this
respect, no evidence was provided by the Respondent in order to prove the payment of
the amounts claimed as outstanding by the Claimant.
50. Furthermore, the Chamber noted once again that the Respondent alleged that the
Claimant refused to receive his salary on purpose, so as to be able to terminate the
Second Contract with just cause. However, the Respondent not only failed to submit any
evidence to substantiate its allegation that the Claimant attempted to frustrate the
Second Contract in such a way, but the Claimant also provided evidence, which remained
uncontested, of the Respondent withholding a check corresponding to the first instalment
under the Second Contract, with the condition that the Claimant gives his passport to the
Respondent in exchange. As such, the Respondent failed to meet the burden of proving
that it indeed complied with the financial terms of the Second Contract.
51. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the Second Contract, based on art. 14bis of the Regulations.
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 outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, is equivalent to four salaries
under the First Contract between October 2021 and January 2022, amounting to
USD 12,000 (USD 3,000 times four), as well as the first three instalments for the period
between February 2022 and April 2022 under the Second Contract, amounting to
USD 21,400 (USD 10,700, plus USD 5,350 times two).
54. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under both the First Contract, i.e., USD 12,000, and the
Second Contract, i.e., USD 21,400, at the moment of the termination, resulting in a total
outstanding amount of USD 33,400.
55. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from the day following the due dates
of the respective instalments until the date of effective payment.
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56. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent 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 Claimant 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 employment contract at the basis of the matter at stake 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 Second Contract.
58. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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 Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the terms of
the Second Contract from the date of its unilateral termination until its end date.
Consequently, the Chamber concluded that the amount of USD 21,400 (i.e. the residual
value of the Second Contract) 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 Claimant 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
Claimant’s general obligation to mitigate his damages.
61. In this respect, the Chamber noted that the Claimant remained unemployed since the
unilateral termination of the Second Contract.
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62. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the Claimant did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
63. In this respect, the Chamber decided to award the Claimant compensation for breach of
contract in the amount of USD 21,400, i.e. four times USD 5,350 corresponding to the
period between April 2022 and July 2022, as the residual value of the Second Contract.
64. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as of 14 April 2022, i.e., the date the claim was lodged,
until the date of effective payment.
iii. Compliance with monetary decisions
65. 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
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
66. 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.
67. 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.
68. 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.
69. 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.
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d. Costs
70. 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.
71. 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.
72. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the Parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ait Malek Sassi, is partially accepted.
2.
The Respondent, Eastern Company SC, has to pay to the Claimant the following amount:
-
USD
3,000
as outstanding remuneration plus
5% interest
p.a. as from
5% interest
p.a. as from
5% interest
p.a. as from
5% interest
p.a. as from
2 November 2021 until the date of effective payment;
-
USD
3,000
as outstanding remuneration plus
2 December 2021 until the date of effective payment;
-
USD
3,000
as outstanding remuneration plus
2 January 2022 until the date of effective payment;
-
USD
3,000
as outstanding remuneration plus
2 February 2022 until the date of effective payment;
-
USD 10,700 as outstanding remuneration plus 5% interest p.a. as from
2 February 2022 until the date of effective payment;
-
USD
5,350
as outstanding remuneration plus
5% interest
p.a. as from
5% interest
p.a. as from
2 March 2022 until the date of effective payment;
-
USD
5,350
as outstanding remuneration plus
2 April 2022 until the date of effective payment;
-
USD 21,400 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 14 April 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5.
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:
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▪
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 made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
7. 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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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