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 23 April 2020

Decision of the

Dispute Resolution Chamber

passed on 23 April 2020,

in the following composition:

Geoff Thompson (England), Chairman

José Luis Andrade (Portugal), member

Stijn Boeykens (Belgium), member

on the claim presented by the player,

Mohammed M M Balah, Palestine

as Claimant

against the club,

Club Saham, Oman

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 25 July 2019, the Palestinian player, Mohammed M M Balah (hereinafter: the player or the Claimant) and the club from Oman, Club Saham (hereinafter: the club or the Respondent) (hereinafter jointly referred to as the parties), signed an employment contract (hereinafter: the contract) valid as from 1 August 2019 until 30 April 2020.

2. In this respect, the contract provided, inter alia, the following financial conditions :

“3.[The player] shall get a signing fee (10.000$) after arriving in the Sultanate and after [the club] receive international transfer certificate and pass medical checkup and Technical and completing the registration in the Omani Football Association.

4.[The player] shall get amount of ($ 3.500) as basic salary for each month during contract period.

5.[The player] shall get a ticket from his country to Muscat and return.

6.[The club] will provide [the player] accommodation in the duration contract period”.

3. On 3 November 2019, the Claimant put the Respondent in default arguing that he did not receive his advance payment and the salaries of August to October 2019, thereby granting the Respondent 15 days to pay.

4. On 16 January 2020, the Claimant unilaterally terminated the contract arguing that despite his default notice, no amount had been paid to him.

5. On the same day, i.e. 16 January 2020, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration and compensation for breach of the contract, requesting the total amount of USD 36,600, corresponding to :

i. USD 5,100 as part of the sign-on fee;

ii. USD 31,500 as the monthly salaries as from August 2019 until April 2020.

6. In his claim, the Claimant sustained that he had only been paid part of the sign-on fee in the amount of Omani Rial (OMR) 1,900 (approx. USD 4,900).

7. In this respect, the Claimant also held that he did not receive his salaries for the period as from August until December 2019.

8. The Claimant further held that he was ”subject to pressure by the head of the management and some management member”, arguing that he was not authorized to attend trainings.

9. In addition, the Claimant sustained that “the Omani football Federation is aware of this case, as I have not received any support from them, I would open another case”.

10. In reply to the claim, the Respondent contested FIFA’s competence do adjudicate the present matter as to the substance.

11. In this respect, the Respondent explained that the Claimant had already resorted to the Dispute Resolution Chamber of the Oman Football Association (hereinafter: Oman FA) in his claim of 29 December 2019 based on the same contract as the one at the basis of the present claim and for similar purposes, i.e. payment of alleged outstanding dues.

12. In continuation, the Respondent provided a decision rendered by said body on 5 February 2020 which suggested that the Respondent also requested monies from the Claimant and finally concluded to the closure of the case considering that “it was proven that the player waived the case” by its letter dated 15 January 2020.

13. Consequently, the Respondent held that that the claim should be rejected.

14. In respect to the above, despite having not been invited to do so, the Claimant explained that he had been informed on 8 March 2020 that the Respondent had initiated proceedings against him in front of the Omani Football Federation. In this respect, the Claimant alleged that he contested this as the present case is ongoing in front of FIFA, however allegedly to no avail.

15. Furthermore, the Claimant acknowledged having initially resorted to the Oman NDRC, however he contested the Respondent’s reply, recalled that his case was not handled impartially in front of the Omani NDRC and argued that he “had only one option, which is to resort to FIFA to apply his complaint about everything happened and to save the time. And to stop abuse from the club and Omani FA”. In addition, the Claimant held that he withdrew his complaint in front of the Oman NDRC prior to any decision being rendered by said body, stating that he did not waive his rights to claim his dues and added on top of his initial claim, inter alia, the following :

“- Obligating [the club] to pay $ 100,000 as compensation to the player against of psychological, material harms and damages to its reputation him;

- Obligating [the club] to pay the full amount of the contract value between the player and [the club];

- Obligating Omani Football Association to pay an amount $ 100,000 as compensation to the player against the provisions and decisions issued by the same causing damages to its reputation, in addition to the above mentioned;

- FIFA has the right to impose maximum punishment on the above mentioned patties [the club] + Omani Football Association”.

16. Finally, the Claimant explained that he signed an employment contract with the Omani club, Al-Suwaiq, on 26 January 2020, valid as from the date of signature until 26 April 2020, for a total value of USD 21,000.

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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 16 January 2020. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2019 edition; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (March 2020 edition), the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Palestinian player and an Omani club.

3. However, the Chamber noted that the Claimant first lodged a claim before the Oman FA on 29 December 2019, by means of which he requested to be awarded outstanding dues in accordance with the contract.

4. In this regard, the Chamber took note that, on 5 February 2020, the bodies of the Dispute Resolution Chamber of the Oman FA rendered a decision by means of which said body acknowledged that the Claimant waived his complaint in his letter dated 15 January 2020.

5. On account of the above, the members of the DRC established that they had to first analyse the competence of the DRC, considering the existence of a decision issued by the Oman FA regarding the contractual documents on the basis of the present dispute.

6. In this respect, the Chamber took note that, according to the Claimant, once he resorted to the to the Oman FA, his case was not handled impartially in front of the relevant body and, consequently, his only option left was to resort to FIFA in order, inter alia, to “stop abuse from the club and Omani FA “.

7. In addition, the DRC recalled that the Claimant held that he withdrew his complaint in front of the Oman FA prior to any decision being rendered by the relevant body, which meant, in his opinion, that he did not waive his rights to claim his dues and added on top of his initial claim, additional requests as described in point I./15. above.

8. With the above in mind, the DRC also underlined that, in the Claimant’s view, he had been informed on 8 March 2020 that the Respondent had initiated proceedings against him in front of the Oman FA and that he contested this as the present case was ongoing in front of FIFA, however allegedly to no avail.

9. Subsequently, the Chamber recalled that the Claimant lodged his claim in front of FIFA on 16 January 2020, which is also the date on which he unilaterally terminated the contract, i.e. one day after having waived his complaint lodged in front of the Oman FA as per his letter to said body dated 15 January 2020.

10. Finally, the DRC recalled that on 5 February 2020, the bodies of the Dispute Resolution Chamber of the Oman FA rendered a decision by means of which said body acknowledged that the Claimant waived his complaint in his letter dated 15 January 2020, said decision having as well not been apparently appealed.

11. At this point, the DRC deemed it important to underline that in the spirit of the applicable regulations, a player – or a club – who actively decides to bring forward a dispute before a specific body among a Football Federation, rather than making use of the alternative dispute resolution process proposed within the legal framework of FIFA, must demonstrate consistency in relation to the choice of the course of action.

12. The DRC further held that it therefore cannot condone the attitude of a player or a club who has specifically decided to submit a labour dispute to the aforementioned body, and has subsequently decided to submit the dispute between the same parties, based on the same legal framework binding the same parties, i.e. the employment contract, to the FIFA Dispute Resolution Chamber; the same is to be noted if the party submits a claim before the FIFA DRC and thereafter seeks to lodge the same claim in front of the national body.

13. In this respect, the DRC’s contention is that a party who chooses a certain course of legal remedy may not then decide to change the legal forum of the dispute, as this would jeopardise the credibility of the sporting dispute resolution system. This being said, the Chamber held that the Claimant’s claim in front of FIFA was the continuation of his claim lodged in front of the Oman FA.

14. Having all the above in mind, the DRC deemed that prior to lodge his claim in front of the Omani bodies in December 2019, the player had the choice in front of which body he wished to lodge his initial claim, this considering the consequences deriving from said choice.

15. As such and in consideration of all the above, the members of the DRC deemed that, from his actions, it appeared that the Claimant changed his mind during the ongoing proceedings in front of the Oman FA and, consequently, that he tried to be awarded more and/or obtain a better outcome/compensation before the FIFA DRC after having waived his claim in front of the Oman NDRC on 15 January 2020, considering that said proceedings were not partial and equilibrated.

16. In this context, a decision having been rendered by the Oman FA which has apparently not been appealed, the Chamber deemed that by acting in such a way, the Claimant himself elaborated and developed a strategy falling within the framework of the principle of “Forum Shopping”.

17. Consequently, by acting as the Claimant did, the Chamber came to the unanimous conclusion that in application of the principle of Electa una via, non datur recursus ad alteram, the Claimant’s way of action could not be retained as consistent.

18. All the above led the Dispute Resolution Chamber to conclude that the claim of the player was inadmissible.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Mohammed M M Balah, is inadmissible.

*****

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 related to the appeal procedure:

According to article 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

Avenue de Beaumont 2

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