Labour Disputes
Texto da decisão
REF FPSD-2795
Decision of the
Dispute Resolution Chamber
passed on 6 October 2021
regarding an employment-related dispute concerning the player Hussein
Sayed Hussein Ali
BY:
Alexandra Gomez Bruinewoud (Netherlands / Uruguay), DRC Judge
CLAIMANT:
Hussein Sayed Hussein Ali, Egypt
Represented by Mr Nader Shawky and Mr Ahmed El Maghraby
RESPONDENT:
CS Sfaxien, Tunisia
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REF FPSD-2795
I.
Facts of the case
1.
On 30 January 2020, the Respondent and the Egyptian club, Al Ahly SC, entered into a loan
transfer agreement, to facilitate the temporary transfer of the Claimant from Al Ahly to the
Respondent, for the period of 6 months.
2.
On 30 January 2020, the Claimant and the Respondent concluded an employment agreement
(hereinafter: the contract), valid for the period between 30 January 2020 and 30 June 2020,
based on which the Claimant was entitled to receive the total amount of USD 60,000 (to be
paid in USD or its equivalent in Tunisian Dinar at a fixed rate of 1 USD = 2.8 TND), as follows:
•
•
•
•
USD 5,000 net ‘at first week of each month’;
USD 10,000 ‘after 7 days of qualification and obtaining license issued by the
Tunisian Football Federation (TFF)’;
USD 15,000 on 15 April 2020;
USD 10,000 at ‘the end of June 2020’.
3.
Art. 11 of the contract contains the following clause: ‘en cas de litige né cas de litige né du
présent contrat, les instances de la fédération Tunisienne de Football sont seul compétente
pour résoudre le litige’.
4.
In August 2020, the Claimant and the Respondent concluded a termination agreement,
based on which the contract was terminated (as it was allegedly extended until 30 September
2020) and based on which the Claimant was entitled to receive the following amounts:
•
•
•
USD 5,000 on 30 September 2020;
USD 5,000 on 31 October 2020;
USD 10,000 on 30 November 2020.
5.
On 16 March 2020, the completion in Tunisia was postponed as a result of the outbreak of
the COVID-19 pandemic, and the Claimant agreed to postpone the receiving of his dues until
the end of the season in Tunisia, according to the ‘Guidelines published by the FIFA Council’.
Allegedly, the Claimant left Tunisia.
6.
On 22 June 2020, the Respondent contacted Al Ahly and requested the Claimant to return
to its club. The Claimant replied to the Respondent that he was ready to return ‘but the
suspension of air traffic prevents him from doing so’. What is more, on an unspecified date
after the air traffic between Tunisia and Egypt was again regular, the Claimant obtained an
entry visa at his own expense, ‘to prove goodwill and to save his sporting career’.
7.
In August 2020, the Respondent contacted the Claimant, seeking to conclude a termination
agreement, which was accepted by the Claimant.
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REF FPSD-2795
8.
On 7 October 2020, the Claimant put the Respondent in default for the amount of USD 5,000
as per termination agreement, providing a 5 days’ deadline to remedy its default, however to
no avail.
9.
On 12 November 2020, the Claimant put the Respondent again in default for the amount of
USD 10,000 as per termination agreement, however to no avail.
10. On 30 November 2020, the Claimant put the Respondent again in default for the amount of
USD 20,000 as per termination agreement, however to no avail.
11. On 6 January 2021, the Claimant lodged a claim in front of the TFF, which was consequently
rejected by means of a decision of the TFF passed on 22 February 2021.
II. Proceedings before FIFA
12. On 13 June 2021, 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
13. On 13 June 2021, the Claimant lodged a claim against the Respondent, claiming the
following amounts:
•
•
•
•
USD 57,000 as outstanding salary as per the contract;
USD 100,000 as compensation, for (a) ‘damages suffered by the Player due to
delaying his dues for a period of more than 10 months’ and (b) ‘physical and moral
damages due to the fact that the Player stopped playing football for a period of more
than 6 months’;
USD 575 as costs for obtaining the visa for Tunisia;
USD 15,000 as legal fees.
14. In his claim, the Claimant explains that he only received an amount of USD 3,000 during his
time at the Respondent.
15. What is more, the Claimant explains that the TFF failed to provide him with the motivation
behind the decision dated 19 February 2021, despite his request to be provided with said
motivation.
b. Position of the Respondent
16. In its reply, the Respondent contested FIFA’s competence to deal with the matter at hand and
argued that based on art. 11 of the contract, the deciding bodies of the Tunisian Football
Federation (TFF) are competent to deal with the matter at hand.
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17. Moreover, the Respondent contested FIFA’s competence to deal with the matter at hand and
also argued that the Claimant had already submitted a claim to the TFF deciding bodies,
which was eventually rejected by the TFF on 19 February 2021.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 13 June 2021 and submitted for decision
on . Taking into account the wording of art. 34 of the October 2021 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.
19. 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 (August 2021 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 an Egyptian player and
a Tunisian club.
20. However, the Chamber noted that the Respondent is of the opinion that the Dispute
Resolution Chamber has no competence to deal with the claim at stake by virtue of the
application of the legal principle of res iudicata.
21. In this respect, the Respondent pointed out that the Claimant had already submitted a claim
to the TFF deciding bodies, which was eventually rejected by the TFF on 19 February 2021.
22. First and foremost, the Chamber wished to highlight that from the submissions of the
Claimant that were provided during the investigation phase of the matter at hand, it can be
noted, inter alia, that the Claimant actively took part in the relevant proceedings in front of
said deciding bodies of the TFF, even initiating said proceedings himself.
23. On account of the fact that the Claimant, as demonstrated above, recognised the
competence of the deciding bodies under the TFF, the Chamber deemed it irrelevant to
analyse the constitution of said deciding body.
24. In continuation, in light of the consideration under points II./20. and II./21. above, the DRC
held that it had to establish whether, considering the general principle of res iudicata, it could
enter into the substance of the matter and pass a decision.
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25. Accordingly, the Chamber deemed it appropriate to briefly recall that on the basis of the
principle of res iudicata, a decision-making body is not in a position to deal with the substance
of a case in the event that another deciding body has already dealt with the same matter by
passing a final and binding decision. Indeed, the parties to the dispute as well as the deciding
authority are bound by the final and binding decision previously passed.
26. In continuation, the Chamber noted that from the information on file, it cannot be established
that the Claimant lodged any appeal in front of the deciding bodies of the TFF against the
mentioned decision passed on 19 February 2021 and notified to the parties on 22 February
2021.
27. As a result thereof, the Chamber satisfied itself that the decision of the deciding bodies of
the TFF of 19 February 2021 was final and binding, which is one of the criteria in order to
establish as to whether the principle of res iudicata is applicable.
28. Furthermore, the Chamber underlined that the principle of res iudicata is applicable if
cumulatively and necessarily the parties to the disputes and the object of the matter in dispute
are identical.
29. In this respect, the Chamber recalled that the criterion of the identity of the parties is given if
the parties to the disputes are the same. Having said this, the Chamber noted that both the
Claimant and the Respondent were the parties in the Tunisian proceedings as well as in the
dispute at stake.
30. As a consequence, as the parties to both disputes are the same, the Chamber came to the
conclusion that the condition of the identity of parties is given.
31. The Chamber then turned its attention to the criterion of the object of the matter in dispute.
32. In this respect, the members of the Chamber started by acknowledging that the identity of
the subject matter is given if the requests of the two claims are similar.
33. In view of the foregoing, the Chamber went on analysing and comparing the requests made,
i.e., the claim of the Respondent against the Claimant in front of the deciding bodies of the
TFF, and the Claimant’s claim against the Respondent before the Dispute Resolution
Chamber.
34. From the information and documentation on file, the Chamber could verify, on the one hand,
that the Claimant initiated legal proceedings in front of the deciding bodies of the TFF against
the Respondent in order to obtain outstanding salaries. According to the Claimant, this legal
action was based on the fact that the Respondent failed to comply with its contractual
obligations towards him.
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35. From the contents of the aforementioned decision, the DRC noted, in particular, that the
deciding bodies of the TFF eventually rejected said claim of the Claimant based on formal
reasons.
36. On the other hand, from the Claimant’s statement of claim, the members of the Chamber
duly noted that the Claimant requested that the Respondent be ordered to pay him
outstanding remuneration and compensation for breach of contract.
37. In view of the aforementioned, the Dispute Resolution Chamber held that both legal actions
were based on the same employment contract and that both actions were aimed at
establishing the alleged responsibility of the Respondent for the non-compliance with the
contractual agreements and/or the early termination of the employment contract between
the parties.
38. On account of the above, the Chamber unanimously determined that the object of the matter
in both disputes is identical and that, therefore, the condition of identity of the object of the
matter in dispute is also given.
39. Consequently, the Chamber concluded that, compared to the legal action in front of the
deciding bodies of the TFF, the matter at hand not only concerns identical parties to the
dispute but also identical objects of the matter in dispute and has, therefore, to be considered
as a res iudicata.
40. In light of the above, the Chamber unanimously decided that in accordance with the general
legal principle of res iudicata it is not in a position to deal again with the substance of the
present matter.
41. Finally, the Chamber wished to emphasise that it is not a body of appeal with which matters
that were already dealt with as to their substance by another competent national deciding
authority can be filed for revision.
b. Costs
42. 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.
43. 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.
44. 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, Hussein Sayed Hussein Ali, is inadmissible.
2. 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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