Labour Disputes
Texto da decisão
REF. FPSD-12606
Decision of the
Dispute Resolution Chamber
passed on 27 June 2024
regarding an employment-related dispute concerning
the player Omar Zekri
BY:
Frans DE WEGER (The Netherlands), Chairperson
Mario FLORES (Mexico), Member
Roy VERMEER (The Netherlands), Member
CLAIMANT:
Omar Zekri, Tunisia
Represented by Slim Boulasnem
RESPONDENT:
Ansar, Lebanon
Represented by Ralph Charbel
pg. 2
REF. FPSD-12606
I. Facts of the case
1.
On 10 July 2023, the Tunisian player Omar Zekri (hereinafter the Claimant or the Player) and
Club Ansar (hereinafter the Respondent or the Club) concluded an employment contract
valid as from 10 July 2023 until 31 May 2024.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant as follows:
“1 – “The Player” will be awarded during this contract the following amounts:
A- 20,000 $ (Twenty thousand U.S. Dollar Fresh Net) once the Player signs the contract, provided
that the club receives the International Transfer Certificate (ITC) through the FIFA TMS Systems.
B- 6,000$ (Six Thousand Fresh U.S. Dollar Net) as monthly salary for 10 months starting from
01/08/2023 until 31/05/2024. The monthly salary shall be paid by the club at the end of each
month.
C- 6,000$ (Six Thousand US Dollar Fresh) as a bonus if the club wins the Lebanese league Title.
D- 3,000$ (Three Thousand US Dollar Fresh) as a bonus if the Club wins the Lebanese Cup Title.
E- 3,000$ (Three Thousand US Dollar Fresh) if the Player has more than 10 Goal Contributions
(Goals and Assists combined)
2 – During the period of this contract, “The Club” undertakes to provide a car for the Player.
3 – The Club shall provide to the Player a furnished apartment in Beirut during the term of the
contract.
4 – The Player shall be granted two economy class round trip tickets (One for him and one for
his father) to his country (Tunisia – Beirut / Beirut – Tunisia) during the Period of This Contract.
6 – “The “Club” is responsible for providing medical care to the “Player” throughout the period
of this contract in the event that he suffers an injury during trainings or matches with the club,
or any illness that he has sustained as a result of trainings or matches with the clubs. The
medical care provided by the club is only related to injuries that occur to the player during the
performance of his duties as a professional football player of the club.”
3.
In addition, article 5.6 of the employment contract reads as follows:
“The “Player” should inform the “Club” about any injury, illness or wound, medical treatment or
drug used.”
4.
Before signing the employment contract, the Player had a successful medical examination.
In the first weeks of training with the Club, the Player experienced pain in his knee, which
pg. 3
REF. FPSD-12606
led him to consult the therapist of the Club Khalil Moussa and proceed with a Magnetic
Resonance Imaging (MRI).
5.
On 1 September 2023, the orthopedic surgeon Dr. Alfred Khoury issued a medical report
on the Player’s knee, noting, among other things, that:
“(…) Mr. Omar Kamal Zekri’s current medical condition can be attributed to a previous injury
from the meniscectomy procedure, which has ultimately led to the development of cartilage
damage due to the loss of weight-bearing capacity of the medial meniscus. Consequently, it is
our professional opinion that Mr. Zekri is not currently fit for competitive play on hard surfaces
and should refrain from continued participation in the championship until further medical
evaluation and guidance.”
6.
By correspondence dated 4 September 2023, the Club sent a notice of termination of the
employment contract to the Player, stating that he had hidden a serious injury which
prevents him from playing professional football and requesting payment within seven days
of USD 25,000 net as compensation.
7.
On 8 September 2023, the Player and the Club met in person, in the presence of three
witnesses, and entered into an agreement to terminate the employment contract
(hereinafter the Termination Agreement).
8.
The Termination Agreement was accompanied by a letter of acknowledgement, which
should be read together as follows:
“[…] Both parties agreed on the following:
• Terminate the contract signed between the parties on the 10st of July 2023 in all of its
effects.
• The “Player” signature on this contract termination agreement is considered as a
clearance to the clubs against any liability towards him.
[…] I, the undersigned Omar Kamal ZAKRI hereby acknowledge that I receive from Al Ansar
Sportive Club an amount as of 20.000 USD only due to the termination of Al Ansar Club
And by this acknowledgement, I hereby discharge Al Ansar Club and Mr. Nabil Badr from any
financial demands in future as complete irrevocable discharge […]”
9.
According to the Player, he was verbally and physically assaulted by the President of the
Club during the meeting on 8 September 2023.
10. On 6 October 2023, the Player’s legal representative (who was not physically present at the
meeting) sent a letter to the Club challenging the validity of the Termination Agreement on
the basis that it had been signed under duress. In addition, the Player’s legal representative
requested payment within ten days of USD 40,000 as compensation and reimbursement
of TND 2,740.104 for medical expenses and flight tickets.
pg. 4
REF. FPSD-12606
11. On 11 October 2023, the Club responded to the latest correspondence from the Player’s
legal representative stating that the Player had breached article 5.6 of the employment
contract, which led to the Club unilaterally terminating the employment contract with just
cause. In addition, the Respondent referred to the Termination Agreement signed between
the parties, which cleared the Club from any liability.
II. Proceedings before FIFA
12. On 10 November 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
13. According to the Claimant, the Respondent unilaterally terminated its employment
contract because of the injury it sustained during training, which does not constitute a just
cause. In addition, the Claimant argued that the Termination Agreement should be
considered null and void as it was signed under duress, without its consent and that it did
not involve reciprocal concessions of comparable importance from the parties.
14. The requests for relief of the Claimant, were the following:
• The outstanding salary of August 2023, in the amount of USD 6,000, plus 5% p.a.
from 1 September 2023.
• The residual value of the employment contract, in the amount of USD 62,000, plus
5% p.a. from 4 September 2023.
• The payment by the Club of USD 60,000 in respect of the specific nature of sport.
• The Club shall be banned from registering any new players for two entire
registration periods.
• The Player be reimbursed flight tickets in the amount of TND 1,660.
• The Player be reimbursed medical expenses in the amount of TND 1,078.104.
• The Club be ordered to pay € 5,000 of legal fees.
• The Club be ordered to pay USD 159 of accommodation costs.
b. Position of the Respondent
15. According to the Respondent, the Player had a previous operation in his knee that he hid
from the Club when he was asked about his past operations or injuries before signing the
employment contract. Therefore, according to the Club, the Player breached the principle
of good faith and article 5.6 of the employment contract, which constitutes a just cause
according to article 14 RSTP.
16. The requests for relief of the Respondent, were the following:
“A) Essentially:
1) decide that the Claim is inadmissible;
pg. 5
REF. FPSD-12606
In the alternative, in case FIFA DRC considers the Claim as admissible:
2) rule that the Claim lodged by the Player shall be entirely dismissed;
3) rule that the Contract Termination Agreement signed by both parties is valid
4) decide that the Claimant is not entitled to any remuneration;
5) declare that all the other requests of the Claimant are groundless and shall be
dismissed;
6) declare that no sporting sanctions should be imposed on the Respondent;
B) Subsidiarily:
1- reduce the compensation requested by the player.”
c. Replica of the Claimant
17. In its replica, the Claimant did not amend its initial request and argued that he had
undergone a successful medical examination before signing the employment contract and
that the Club’s doctors had not detected anything abnormal. It is therefore during the
execution of the employment contract that he was injured.
18. Furthermore, it is the Claimant’s opinion that article 5.6 of the employment contract only
applies to injuries suffered during its execution, which he complied with by informing the
Club of his injury sustained during training.
d. Duplica of the Respondent
19. In its duplica, the Respondent reiterated its position and requested, if the Claimant’s claim
is not dismissed, to reduce the compensation due by the value of the Player’s new
employment contract for the period corresponding to the time remaining on the
prematurely terminated employment contract.
20. In addition, the Respondent argued that the salary of the Player for the month of August
2023 was paid as part of the Termination Agreement as it specifically stated that the Player
doesn’t have anything else to claim from the Club.
e. New contractual situation of the Player
21. The Player has informed the FIFA general secretariat that he signed a new employment
contract with the Tunisian Club Avenir Sp. De La Marsa, valid as from 8 January 2024 until
30 June 2025. According to the new employment contract, the Player is entitled to a
monthly remuneration of TND 3,000 gross.
pg. 6
REF. FPSD-12606
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 10 November 2023 and
submitted for decision on 27 June 2024. 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.
23. 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 (February 2024 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 a Lebanese club.
24. 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 (February 2024 edition) and
considering that the present claim was lodged on 10 November 2023, the May 2023 edition
of said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. 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
26. 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.
pg. 7
REF. FPSD-12606
i. Main legal discussion and considerations
27. 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 circumstances of the
termination of the employment relationship, as well as the validity of the Termination
Agreement.
28. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, if the parties validly concluded a Termination
Agreement on 8 September 2023, and to decide on the consequences arising thereof.
29. According to the Player, the Club terminated the employment contract without just cause
on 4 September 2023 due to his medical condition. In addition, the Player argued that he
was verbally and physically assaulted by the President of the Club during the meeting on
8 September 2023, which led to the signing under duress of a disproportionate
Termination Agreement. It is therefore the Player’s opinion that the Termination
Agreement should be considered null and void and that he is entitled to outstanding
remuneration and compensation for breach of contract.
30. The Chamber duly noted the Respondent’s arguments, according to which it had just cause
to terminate the employment contract and that the Termination Agreement was validly
concluded as it denied having put the Player under any kind of duress.
31. Having stated the above, the Chamber turned to the events of 8 September 2023 and
considered whether the Termination Agreement should be declared null and void or
whether it should be considered valid and binding on the parties. In this regard, it must be
noted that the parties dispute the course and content of such meeting, but not the fact
that they signed the Termination Agreement.
32. Regarding the content of the Termination Agreement, the Chamber outlined that the mere
signature of the document is not sufficient to ensure its enforceability. In particular, the
DRC recalled the CAS jurisprudence which establishes that, in concrete terms, to assess
whether a transaction is permissible, the court/deciding body is required to conduct a
balancing of interests, checking whether the mutual claims waived by each party are of
comparable value. Put differently, whether there is an appropriate equivalence between
the parties’ reciprocal concessions, especially when a waiver is included in the relevant
document.
33. In this respect, the Chamber determined that the Settlement Agreement established
reciprocal concessions of comparable importance between the parties. On one hand, the
Termination Agreement allowed the Player to receive a sum of USD 20,000, equivalent to
more than three months’ salary, and to sign a new employment contract for an additional
year with his new club in Tunisia. On the other hand, the Club no longer benefited from the
pg. 8
REF. FPSD-12606
Player’s services, but did not have to pay his salary either. Therefore, it seemed to the
Chamber that the parties found a compromise via the Settlement Agreement.
34. The Chamber subsequently examined the existence of said alleged duress and noted that
any claim of duress needs to be proven and that a signed Termination Agreement is binding
upon the parties unless there is convincing evidence to the contrary.
35. Considering the above and in the absence of clear evidence to the contrary, the Chamber
concluded that the contract was mutually terminated according to the Termination
Agreement. In fact, the Chamber observed that the Player did not advance any
documentation in support of his position, e.g., any proof of duress or any indication of
physical or verbal assaults by the President of the Club. Consequently, the DRC determined
that the Player did not meet his burden of proof in line with art. 13, par. 5 of the Procedural
Rules, hence his argumentation in this regard should be set aside.
36. In addition, the Chamber considered that the Termination Agreement superseded the
employment contract, as it was freely concluded by them and was executed by the Club.
37. On account on the above, the Chamber decided that the Termination Agreement is valid,
with the exception of the Claimant’s waiver of its salary for the months of August 2023 and
September 2023. In this regard, the Chamber considered that the Player could not have
validly waived his outstanding remuneration, as the remuneration claimed by the Player
concerned a period of time in which the work by the latter had already been performed
and that, consequently, the provision under which the Player purportedly waived his
entitlement to said amounts was unenforceable.
ii. Consequences
38. 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 the contract at the moment of the termination, i.e.,
USD 6,000 for the salary of the month of August 2023 and USD 800 for the salary of the
month of September 2023 on a pro rata basis.
39. 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 1 September 2023 and 5 September 2023
respectively, until the date of effective payment.
iii. Compliance with monetary decisions
40. 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
pg. 9
REF. FPSD-12606
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.
41. 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.
42. 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.
43. 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.
44. 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
45. 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.
46. 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.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-12606
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Omar Zekri, is partially accepted.
2.
The Respondent, Ansar, must pay to the Claimant the following amounts:
- USD 6,000 as outstanding remuneration plus 5% interest p.a. as from 1 September 2023
until the date of effective payment.
- USD 800 as outstanding remuneration plus 5% interest p.a. as from 5 September 2023
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:
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 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.
6.
The consequences shall only be enforced at the request of the Claimant 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 cost.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-12606
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
pg. 12