Labour Disputes
Texto da decisão
REF. FPSD-8346
Decision of the
Dispute Resolution Chamber
passed on 1 June 2023
regarding an employment-related dispute concerning the player Mohamed
Ali Trabelsi
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Calum Beattie (Scotland), member
CLAIMANT/COUNTER-RESPONDENT:
Mohamed Ali Trabelsi , Tunisia
Represented by M.ALI ABBES; M. MOHAMED ROKBANI
RESPONDENT/COUNTER-CLAIMANT:
Eastern Company SC, Egypt
Represented by Nehad Hagag
pg. 2
REF. FPSD-8346
I. Facts of the case
1.
On 19 November 2021, the Tunisian player, Mohamed Ali Trabelsi (hereinafter:
Claimant/Counter-Respondent or player) and the Egyptian club, Eastern Company SC
(hereinafter: club or Respondent/Counter-Claimant) concluded an employment contract
(hereinafter: contract) for a period of five seasons valid as from the start of 2021/2022
season until the “end of season 2025/2026”.
2.
According to the contract, the club undertook to pay the player the following remuneration:
(a) for the 2021/2022 season a total amount of USD 700,000, payable as follows:
-
USD 50000 payable on 16/11/2021
USD 3125 payable on 30/11/2021
USD 3125 payable on 01/12/2021
USD 3125 payable on 01/01/2022
USD 3125 payable on 01/02/2022
USD 3125 payable on 01/03/2022
USD 3125 payable on 01/04/2022
USD 3125 payable on 01/05/2022
USD 3125 payable on 01/06/2022
USD 25000 payable on 01/09/2022
A bonus of USD 10000 if the player will participate in more than 70% of the matches.
A bonus of USD 10000 if the player will score 10 goals.
A bonus of USD 10000 if the player will make 10 assists
(b) for the 2022/2023 season a total amount of USD 120,000
-
USD 42000 payable on 01/10/2022
USD 6000 payable on 01/11/2022
USD 6000 payable on 01/12/2022
USD 6000 payable on 01/01/2023
USD 6000 payable on 01/02/2023
USD 6000 payable on 01/03/2023
USD 6000 payable on 01/04/2023
USD 6000 payable on 01/05/2023
USD 6000 payable on 01/06/2023
USD 30000 payable on 01/09/2023.
USD 10000 if the player will participate in more than 70% of the matches.
A bonus of USD 15000 if the player will score 10 goals.
A bonus of USD 15000 if the player will make 10 assists
(c) for the 2023/2024 season a total amount of USD 140,000
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REF. FPSD-8346
(d) for the 2024/2025 season a total amount of USD 160,000
(e) for the 2025/2026 season a total amount of USD 180,000
3.
On 2 November 2022, the player put the club in default, granting it a deadline of 15 days
and requesting payment of the amount of USD 114,875, corresponding to the following:
-
USD 56,875 as salaries outstanding for the 2021/2022 season
USD 10,000 as bonus for participation in more than 70% of matches
USD 42,000 as outstanding amounts due for the 2022/2023 season
4.
On 14 November 2022, the player sent another letter to the club, inter alia, mentioning the
following:
“Dear sir
1. We remind you that our default notice still without any reaction from your side.
2. We are informed by the player that you have proposed to make payment with bank check in
Egyptian pound which is not acceptable.
3.To facilitate the execution of your financial obligations we urge you to transfer the amount
claimed in our notice on the following bank account.
Finally, we draw your attention that the deadline will elapse on 17 November 2022 at 23:59”
5.
On 16 November 2022, the club sent a correspondence to the player, according to which it
informed the player that his letter dated, 2 November 2022 is incorrect and that it has not
breach its contractual obligations.
6.
On 17 November 2022, the player replied to the aforesaid correspondence, inter alia,
mentioning that the club should proceed with the payment of the amounts claimed as per
his default notice, failing which he would proceed with termination in accordance with
art.14bis.
7.
On 19 November 2022, the player terminated the contract with the club.
8.
On 31 January 2023, the player signed a contract with the club, Club Sportif Sfaxien, valid
from 31 January until 30 June 2023, for a monthly salary of TND (Tunisian Dinars) 4,000.
II. Proceedings before FIFA
9.
On 24 November 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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a. Position of the player
10. According to the player, he had just cause to terminate the contract and the agreement, in
accordance with art. 14bis RSTP.
11. The requests for relief of the player, were the following:
(a) USD 114,875 as outstanding remuneration, corresponding to the following:
-
USD 6,875 as the remaining amount of the advance of payment due on16/11/2021
USD 10,000 as participating bonus payment
USD 3,125 plus 5% p.a from 21/11/2021 until the date of effective payment
USD 3,125 plus 5% p.a from 02/12/2021 until the date of effective payment
USD 3,125 plus 5% p.a from 02/01/2022 until the date of effective payment
USD 3,125 plus 5% p.a from 02/02/2022 until the date of effective payment
USD 3,125 plus 5% p.a from 02/03/2022 until the date of effective payment
USD 3,125 plus 5% p.a from 02/04/2022 until the date of effective payment
USD 3,125 plus 5% p.a from 02/05/2022 until the date of effective payment
USD 3,125 plus 5% p.a from 02/06/2022 until the date of effective payment
USD 25,000 plus 5% p.a from 02/09/2022 until the date of effective payment.
USD 42,000 plus 5% p.a from 02/10/2022 until the date of effective payment
USD 6,000 plus 5% p.a from 02/11/2022 until the date of effective payment
(b) USD 627,000 as compensation for breach of the contract (USD 552,000 residual value of
the contract plus USD 75,000 as additional compensation) plus 5% p.a. as from 19
November 2022 until the effective payment
(c) impose any sanction on the club as considered appropriate
b. Position of the club and counterclaim
12. In its reply, the club rejected the claim of the player.
13. The club indicated that the player “escaped from the club” on 31 October 2022 and “despite
all attempts to communicate with him, the club failed to do so”, the player failed to return to
Egypt.
14. The club argued that the player had no just cause to terminate the contract as he “has
received most of his previous dues in Egyptian currency, which is considered an acknowledgment
of his approval of that, except that he is currently refraining from receiving checks, in addition
to that the player has refused to hand over his passport to get a residence for him, and
accordingly the player can open a bank account and thus deposit his dues, finally he fled from
the club.”
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REF. FPSD-8346
15. The club mentioned that due to the player’s behaviour and leaving the club, it has a right
to compensation on account of the player’s absence and negligence.
16. Moreover, the club indicated “that the allegations of the player’s lawyer concerning not
receiving the due amounts have been answered and clarified in many correspondences between
the club and the player’s lawyer, as mentioned above, which explains to him that the player
refused to receive financial dues because they are in local currency, despite receiving all previous
dues in local currency. Accordingly, the club has the right to terminate the Contract for a just
cause without consequences of any kind.”
17. In conclusion the club requested the following relief:
(a) the Player to pay compensation in the amount of USD 700,000, (the total amount of the
concluded contract between both Parties) plus 5 % as annual interests in addition to sports
penalties and suspending the Player.
(b) terminating the Contract with just cause without any consequences to Eastern Company SC
(whether Compensation or imposing sports penalties).
(c) Obliging the Player to pay all the fees and expenses prescribed for this
c. Reply of the player to the counterclaim of the club
18. In its reply to the counterclaim, the player mentioned the following:
-
“Firstly, and foremost, we draw your kind attention that the termination was made by
the player for just cause and at no time the club has decided to terminate the contract
unilaterally for any reason.
-
Consequently, the club’s allegation that it terminates the contract unilaterally for just cause is
baseless and groundless and cannot be taken in account by the tribunal.
-
Secondly, we are surprised that the club alleged that the claimant has travelled without any
previous notice.
-
In this context, the player has acted with a high level of professionalism and good faith and had
continued to train and work with the club until the date of the notification of termination of the
contract.
-
The player has travelled to Tunisia on 24/11/2023 i.e., after the notification of the contract”
19. In conclusion, the player requested that the counterclaim of the club be rejected.
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REF. FPSD-8346
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 24 November 2022 and
submitted for decision on 1 June 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 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
Tunisia and a club from Egypt.
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 (March 2023 edition), and
considering that the present claim was lodged on 24 November 2022, 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
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. 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.
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REF. FPSD-8346
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 the parties strongly dispute the justice of the early
termination of the contract by the player based on the alleged non-payment of certain
financial obligations by the club as per the contract, in accordance with art. 14bis of the
Regulations.
26. In this context, the Chamber acknowledged that its task was to determine whether the
contract was terminated by the player with or without just cause and to decide on the
consequences thereof.
27. The DRC observed that the player asserted that the club had not fulfilled its contractual
obligations towards him and therefore he had just cause to terminate the contract on 19
November 2022.
28. The members of the Chamber noted that the club in its reply to the claim argued that the
player was absent without a reason as from 31 October 2022 and that cheques with his
payments were available at all times, however the player refused to receive it. Accordingly,
the DRC noted that the club submitted a counterclaim against the player arguing that it has
a right to compensation on account of the player’s absence and negligence.
29. In this context the DRC analysed the documentation on file and highlighted the said
documentation as submitted by the club are not conclusive documentary evidence, on the
basis of which it could be established that it made the relevant payments to the player and
do not prove beyond doubt the payment of the amounts claimed as outstanding by the
player.
30. In continuation, the Chamber noted that the player claims not having received his
remuneration for a period over more than two months. Furthermore, that the player has
provided written evidence of having put the club in default at least 15 days before
unilaterally terminating the contract on 19 November2022.
31. Thus, the DRC concluded that the player had a just cause to unilaterally terminate the
contract, based on art. 14bis.
32. Consequently, the DRC decided to reject the counterclaim of the of the club.
ii. Consequences
33. 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.
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REF. FPSD-8346
34. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to the total amount
of USD 114,875, corresponding to the following:
-
USD 10,000 as participating bonus payment
USD 6,875 as the remaining amount of the advance of payment due on 16 November 2021
USD 3,125 as instalment for November 2021
USD 3,125 as instalment for December 2021
USD 3,125 as instalment for January 2022
USD 3,125 as instalment for February 2022
USD 3,125 as instalment for March 2022
USD 3,125 as instalment for April 2022
USD 3,125 as instalment for May 2022
USD 3,125 as instalment for June 2022
USD 25,000 as instalment for September 2022
USD 42,000 as instalment for October 2022
USD 6,000 as instalment for November 2022
35. 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 respective due dates until the date of
effective payment.
36. 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.
37. 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.
38. 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
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REF. FPSD-8346
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
39. 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
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 552,000 (i.e., residual value of the contract - December
2022 until September 2023 in the amount of USD 72,000; USD 140,000 for the season
2023/2024; USD 160,000 for the season 2024/2025; and USD 180,000 for the season
2025/2026) serves as the basis for the determination of the amount of compensation for
breach of contract.
40. 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.
41. Indeed, the player found employment with Club Sportif Sfaxien, valid from 31 January until
30 June 2023. In accordance with the pertinent employment contract, the player was
entitled to approximately TND (Tunisian Dinars) 4,000 per month. Therefore, the Chamber
concluded that the player mitigated his damages in the total amount of TND 20,000
(approximately USD 6,546.6) , that is, TND 4,000 times 5.
42. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e., overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
43. In this respect, the DRC decided to award the amount of additional compensation of USD
18,000, i.e., three times the monthly remuneration of the player.
44. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of
the Regulations, the overall compensation may never exceed the rest value of the
prematurely terminated contract.
45. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD
552,000 to the, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
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REF. FPSD-8346
46. Lastly, 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 19 November 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
47. 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.
48. 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.
49. 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.
50. 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.
51. 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
52. 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.
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REF. FPSD-8346
53. 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.
54. 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-8346
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Mohamed Ali Trabelsi, is partially
accepted.
2.
The Respondent/Counter-Claimant, Eastern Company
Claimant/Counter-Respondent the following amount(s):
SC,
must
pay
to
the
(a) USD 114,875 as outstanding remuneration plus 5% interest p.a. as from the
respective due dates until the date of effective payment, as follows:
-
on the amount of USD 10,000 as from 30 August 2021
on the amount of USD 6,875 as from 17 November 2021
on the amount of USD 3,125 as from 1 December 2021
on the amount of USD 3,125 as from 2 December 2021
on the amount of USD 3,125 as from 2 January 2022
on the amount of USD 3,125 as from 2 February 2022
on the amount of USD 3,125 as from 2 March 2022
on the amount of USD 3,125 as from 2 April 2022
on the amount of USD 3,125 as from 2 May 2022
on the amount of USD 3,125 as from 2 June 2022
on the amount of USD 25,000 as from 2 September 2022
on the amount of USD 42,000 as from 2 October 2022
on the amount of USD 6,000 as from 2 November 2022
(b) USD 552,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 19 November 2022 until the date of effective payment.
3.
Any further claims of the Claimant/Counter-Respondent 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:
1. The Respondent/Counter-Claimant 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.
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6.
The consequences shall only be enforced at the request of the Claimant/CounterRespondent in accordance with art. 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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REF. FPSD-8346
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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pg. 15