F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 17 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 January 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Stefano Sartori (Italy), member

José Luis Andrade (Portugal), member

on the claim presented by the player,

Lassaad Jaziri, Tunisia,

represented by Mr Ali Abbes

as Claimant

against the club,

Ismaily SC, Egypt

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 12 July 2018, the player Lassaad Jaziri (hereinafter: the player or the Claimant) concluded an employment contract with the club Ismaily SC (hereinafter: the club or the Respondent), valid for “three seasons”, as from the season 2018/2019 until the end of the season 2020/2021, pursuant to which he was entitled to the total amount of USD 600,000 as follows:

a. USD 173,334 for the first season according to the following schedule:

 USD 43,337 to be paid on 1 August 2018;

 10 monthly salaries of USD 8,666 each, to be paid as from 1 September 2018 until 1 June 2019;

 USD 43,337 to be paid on 1 July 2019;

b. USD 200,000 for the second season;

c. USD 226,666 for the third season.

2. By letter dated 28 January 2019, the Claimant addressed the Respondent, asking that within 48 hours the Respondent:

a. Reintegrate him in the quota of 4 foreign players in order for him to participate to the Respondent’s official matches;

b. Return him his passport.

3. By letter dated 21 February 2019, the Claimant addressed the Respondent once more with a correspondence of analogous content.

4. On 4 March 2019, the Claimant unilaterally terminated the contract

5. On 18 March 2019, the Claimant lodged a claim against the Respondent, maintaining that he had just cause to terminate the employment contract and asking the amount of USD 539,338 as compensation for breach of contract as well as sporting sanctions to be imposed on the Respondent.

6. The Claimant explained that, according to the regulations of the Egyptian Football Association, clubs in Egypt can only register 4 foreign players to figure in the list of for the matches.

7. That said, the Claimant pointed out that the Respondent had already filled the 4 spots for foreign players before the winter transfer window, but however it recruited other players and ended up with 5 foreign players. The Claimant explained that, consequently, the Respondent excluded him from the list of those eligible to play official competitions and put him on a “waiting list”.

8. The Claimant underlined that, according to the DRC jurisprudence and well as that of the SFT, athletes’ fundamental rights are not limited to receiving their salaries but also the possibility to compete.

9. Moreover, the Claimant maintained that the Respondent had retained his passport in order to put pressure on him and force him to terminate the contract. The Claimant recalled that on the same day he asked for help via social media to get back his passport, i.e. 10 March 2019, the Respondent returned it to the Tunisian consulate in Egypt.

10. Having been deprived of the possibility to being eligible to play for his club, the Claimant maintained that he had just cause to terminate the contract and asked to be compensated in the amount corresponding to the residual value of the contract.

11. Concerning the calculation of compensation, the Claimant included the salaries as from April 2019 of the first season (cf. above point I.1.a.).

12. The Respondent replied that, up until the moment he left the country without permission, it had paid the Claimant the total amount of USD 98,799.

13. The Respondent further explained that the Claimant’s exclusion from the official matches’ list is a purely technical issue and not definitive anyway since clubs in Egypt “can list different players at different matches”.

14. In this regard, the club argued that the player is still registered with the club.

15. Moreover, the Respondent maintained that the Claimant’s argument concerning his passport “is totally wrong” since he used it to leave the country.

II. Considerations of the Dispute Resolution Chamber

1. 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 submitted to FIFA on 21 March 2019. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand (cf. article 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition January 2020), 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.

3. Furthermore, the Chamber analysed which 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 on the Status and Transfer of Players (edition January 2020), and considering that the claim was lodged on 18 March 2019, the June 2018 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. In particular, the Chamber recalled that, in accordance with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the TMS.

5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. First of all, the members of the Chamber acknowledged that, on 12 July 2018, the player and the club had concluded an employment contract valid as from the season 2018/2019 until the end of the season 2020/2021, pursuant to which the club undertook to pay to the player the remuneration, as established in point I.1. above.

7. Furthermore, the members of the DRC took note of the fact that, on 28 January 2019 and 21 February 2019, the player had sent a letter to the club and requested to be re-registered with the club.

8. Moreover, the DRC took note that, according to the player, he had just cause to unilaterally terminate the employment contract on 4 March 2019, since the club failed to reply to his letters and since the club did not register the player. In this regard, the player affirmed that he had no alternative but to terminate the contract and deemed that the club should be held liable for the early termination of said contract.

9. In addition, the Chamber noted that, according to the player, the club retained his passport in order to put pressure on him and force him to terminate the contract.

10. Subsequently, the members of the DRC took note that the club, for its part, rejected the player’s claim that it de-registered the player and deemed that the player was still registered with the club.

11. In continuation, the Chamber observed that the club argued that the player’s claim concerning the retention of his passport are wrong, as the player used the same passport to leave the country.

12. In light of the foregoing, the DRC considered that the underlying issue in this dispute, considering the parties’ position, was to determine as to whether the player had just cause to terminate the employment contract and to determine the consequences thereof.

13. In view of the above, the Chamber subsequently went on to deliberate as to whether the player was de-registered by the club, and if it can be considered as a just cause for the player to have prematurely terminated the employment relationship.

14. In this context, the Chamber considered that the club contested that it de-registered the player and deemed that the player remained registered with the club and the Egyptian Football Association, but the DRC noted that the club failed to provide any documentary evidence for its statements.

15. As such, the DRC considered that at the time of the termination of the contract, i.e. on 4 March 2019, despite the arguments of the club that the player remained registered, the player could reasonably believe that he was de-registered as the club failed to provide any reply to his letters. Consequently, and considering the situation of the player at the time of the termination, the Chamber was of the opinion that the objective circumstances at the time did provide the player with just cause to prematurely terminate the employment contract.

16. At this point, the members of the DRC first of all considered important to point out, as has been previously sustained by the DRC, that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches. In this context, the DRC emphasized that by refusing to register a player, a club is effectively barring, in an absolute manner, the potential access of a player to competition and, as such, violating one of his fundamental rights as a football player.

17. Therefore, the members of the DRC concluded that the Respondent effectively prevented the Claimant from being eligible to play for it for the remainder of the 2018/2019 season, and thus, that the player terminated the contract at the beginning of the said season.

18. In light of the aforementioned, the DRC came to the unanimous conclusion that the player had terminated the contract with just cause.

19. Having established that the club is to be held liable for the early termination of the employment contract, the DRC focused his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC established that the player is entitled to receive from the club compensation for breach of contract.

20. In this regard, the DRC focused its attention on the calculation of the amount of compensation for breach of contract due to the Claimant by the Respondent in the case at stake. In doing so, the DRC 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.

21. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber observed that the employment contract does not contain any such clause.

22. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the player had to be assessed in application of the parameters set out in art. 17 par. 1 of the Regulations. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its termination and concluded that the player would have been entitled to receive USD 496,001 as remuneration had the employment contract been executed until its regular expiry date, i.e. 30 June 2021. Consequently, the Chamber concluded that the amount of USD 496,001 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

23. In continuation, the Chamber assessed 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 able to reduce his loss of income. In this respect, the DRC deemed it necessary to refer to the first sentence of art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player signed a new contract by the time of the decision, the value of the new contract for the period corresponding to the time remaining on the prematurely terminated contract shall be deducted from the residual value of the contract that was terminated early (the ”Mitigated Compensation”).

24. In respect of the above, and according to the information contained in the TMS, the Chamber recalled that, on 17 July 2019, the Claimant signed an employment contract with the Saudi Arabian club, Alnahda Sport Club, valid as from 14 July 2019 until 30 May 2020, according to which, he was entitled to a total remuneration in the amount of USD 40,000.

25. Consequently, on account of all the above-mentioned considerations, the Chamber decided that the Respondent must pay the amount of USD 456,001 as compensation for breach of contract to the player, which is considered by the Chamber to be a fair and reasonable amount.

26. Therefore, the DRC decided to partially accept the player’s claim and concluded its deliberations by rejecting any further claim of the player.

27. Furthermore, taking into account the consideration under number II./3. above, the Chamber referred to par. 1 and 2 of art. 24bis 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.

28. In this regard, the Chamber pointed out 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 and for the maximum duration of three entire and consecutive registration periods.

29. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

30. Finally, the Chamber 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. 24bis par. 3 of the Regulations.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Lassaad Jaziri, is partially accepted.

2. The Respondent, Ismaily SC, has to pay to the Claimant, within 45 days as from the date of notification of this decision, compensation for breach of contract in the amount of USD 456,001.

3. Any further claim lodged by the Claimant is rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts plus interest mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due in accordance with point 2. above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the amount due in accordance with point 2. above is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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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 motivated decision (legal remedy):

According to art. 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 (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport (CAS)

Avenue de Beaumont 2, CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer