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 9 April 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 April 2020,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Daan de Jong (The Netherlands), member

on the claim presented by the player,

Mahmoud Salma, Palestine

represented by Mr Emad Hanayneh

as Claimant

against the club,

Al Ahly, Egypt

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 5 January 2019, the Palestinian player, Mr Mahmoud Salma, (hereinafter: the player or the Claimant) and the Egyptian club, Al Ahly (hereinafter: the club or the Respondent) signed an employment contract (hereinafter: the contract), valid for three and a half seasons, i.e. until the end of the season 2021/2022.

2. According to the contract, the Claimant was entitled to a total amount of USD 438,600, to be paid as follows:

“First season (2018/2019) amount of $51600 (fifty one thousand six hundred Dollars) which shall be distributed as follows:

1st Installment: $12900 (twelve thousand nine hundred Dollars) to be paid on 30/1/2019

2nd installment: $6450 (six thousand four hundred fifty Dollars) to be paid on 28/2/2019

3rd installment: $6450 (six thousand four hundred fifty Dollars) to be paid on 30/3/2019

4th installment: $6450 (six thousand four hundred fifty Dollars) to be paid on 30/4/2019

5th installment: $6450 (six thousand four hundred fifty Dollars) to be paid on 30/5/2019

6th installment: $6450 (six thousand four hundred fifty Dollars) to be paid on 30/6/2019

Second season (2019/2020) amount of $103200 (one hundred & three thousand and two hundred Dollars) which shall be distributed as follows:

1st Installment: $25800 (twenty five thousand eight hundred Dollars) to be paid on 30/7/2019

2nd installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/8/2019

3rd installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/9/2019

4th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/10/2019

5th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/11/2019

6th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/12/2019

7th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/1/2020

8th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 28/2/2020

9th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/3/2020

10th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/4/2020

11th installment: $5160 (five thousand one hundred sixty Dollars) to be paid on 30/5/2020

12th installment: $25800 (twenty five thousand eight hundred Dollars) to be paid on 30/6/2020

Third season (2020/2021) amount of $129000

Fourth season (2021/2022) amount of $154800”

3. By means of a correspondence dated 22 November 2019, the Claimant asked the Respondent to clarify his “legal situation with the Club”, “to deny the news of the website that he’s still with the Club” and to “deny the news that he is no longer registered as the Club’s players”.

4. Moreover, the Claimant granted the Respondent 15 days to “pay four months salaries July the amount of 25,800 USD, August amount of 5160 USD, September amount of 5160 USD and October 2019 amount of 5160 USD with total amount of 41,280 USD”.

5. On 22 January 2020, the Claimant lodged a claim against the Respondent in front of FIFA.

6. In his claim, the Claimant explained that on 29 August 2019, he found out from the media that “he was no longer one the Club’s players for the current season 2019/2020”.

7. In this context, the Claimant deemed that the Respondent violated FIFA Regulations as it “removed the Player’s registration from the list of the Club’s list in the EFA and did not pay for the player his four months payments.”

8. Furthermore, the Claimant stated that the Respondent never replied to his letter dated 22 November 2019, by which he requested explanations about his legal situation and the payment of outstanding salaries.

9. In these circumstances, the Claimant considered that the Respondent terminated the contract at the moment that it did not register him with the Egyptian Football Association for the season 2019/2020.

10. In light of the above, the Claimant requested the amount of USD 387,000 as compensation, plus 5% p.a. as from the due dates of each payment. The Claimant also requested the imposition of sanctions on the Respondent.

11. In its reply, the Respondent rejected the Claimant’s claim and deemed that it had made all payments for the 2018/2019 season.

12. In addition, the Respondent argued that at the end of the 2018/2019 season, the Claimant expressed his wish to return to his home country, which resulted in the parties mutually agreeing on the termination of the contract. In this context, the Respondent stated that the Claimant immediately left the country, making it impossible to contact him in order to conclude a written and signed termination agreement.

13. Moreover, the Respondent stressed that it never received any correspondence from the Claimant, as the email address used by the latter did not correspond to any of the Respondent’s email addresses.

14. Finally, the Respondent argued that the Claimant’s de-registration was an obvious consequence of the mutual termination agreement.

15. After being requested, the Claimant informed FIFA that he concluded an employment contract with the Palestinian club, Al Sadaqa SC, valid as from 11 October 2019 for the entire duration of the 2019/2020 season, pursuant to which he was entitled to a remuneration of USD 2,000 “for the remainder of the first round of the current season 2019/2020” and “USD 4,000 for the second round of the current season 2019/2020, paid upon completion of the sports season”.

16. Furthermore, the Claimant informed FIFA that he had also signed an employment contract with the Jordanian club, Aqaba Youth Club, valid as from 16 March 2020 until “the end of the football season 2020”, according to which he was entitled to a total remuneration of USD 6,000.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was first submitted to FIFA on 22 January 2020. Consequently, the November 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is 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), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a Palestinian player and an Egyptian club.

3. Furthermore, the DRC analysed which edition of the 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 (March 2020 edition) and considering that the present matter was submitted to FIFA on 22 January 2020, the January 2020 edition of said Regulations is applicable to the present matter as to the substance.

4. With the above having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber firstly acknowledged that it was undisputed that the Claimant and the Respondent had signed an employment contract on 5 January 2019, valid for three and a half seasons, i.e. until the end of the season 2021/2022. In continuation, the Chamber noted that it was also undisputed that the Claimant was entitled to financial remuneration as set out at point I. 2. above.

6. What is more, the Chamber further noted that on 22 November 2019, the Claimant asked the Respondent to provide him with information about his “legal situation with the Club”, “to deny the news of the website that he’s still with the Club”, to “deny the news that he is no longer registered as the Club’s players” and finally to pay him the outstanding amounts corresponding to “four months salaries July the amount of 25,800 USD, August amount of 5160 USD, September amount of 5160 USD and October 2019 amount of 5160 USD with total amount of 41,280 USD”.

7. Summarising the parties’ respective positions in this dispute, the members of the Chamber noted that the Claimant, on the one hand, considered that the Respondent terminated the contract at the moment that it did not register him with the Egyptian Football Association for the season 2019/2020, whilst on the other hand, the Respondent affirmed that the parties had mutually terminated the contract, following the Claimant’s wish to return to his home country, and that the Claimant’s de-registration was a simple consequence thereof. In this regard, the Chamber further noted that the Respondent stated that it was impossible for the parties to formalise in writing the termination agreement, considering that the Claimant immediately left Egypt.

8. In view of the foregoing, the Chamber established that the main issue to be analysed in the present case is whether the contract was mutually terminated by the parties at the end of the 2018/2019 season, or if it was in fact unilaterally and prematurely terminated by the Respondent at the moment when it decided to de-register the Claimant for the 2019/2020 season. The Chamber deemed that it shall then decide on the consequences, if applicable.

9. In this respect, the members of the Chamber deemed it appropriate to recall the basic principle of burden of proof, as stipulated in art. 12 par. 3 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.

10. In this context, the Chamber noted that the Claimant deemed that the Respondent terminated the contract at the moment that it did not register him with the Egyptian Football Association for the season 2019/2020 and that he should, as a result, be entitled to compensation for breach of contract.

11. On the other hand, the Chamber thoroughly analysed the position of the Respondent, which deemed that it had made all payments for the 2018/2019 season, that the contract had been mutually terminated between the parties and that the de-registration of the Claimant was only a consequence of the foregoing.

12. In this respect, the Chamber noted that the Claimant first complained on 22 November 2019 to the Respondent of his legal situation at the club, in particular of his de-registration from the team for the 2019/2020 season.

13. In continuation, the Chamber observed that on 11 October 2019, the Claimant signed an employment contract with the Palestinian club, Al Sadaqa SC, valid as from the date of signature for the entire duration of the 2019/2020 season.

14. In this context, the Chamber emphasised that the Claimant signed his employment contract with the club Al Sadaqa SC a month before he first contested his de-registration and requested the Respondent to pay outstanding amounts. In other words, the Claimant was already contractually bound to a third club when he first contacted the Respondent, contesting his situation and requesting payments.

15. In addition, the Chamber took note of the position of the Claimant, according to which he found out on 29 August 2019, that “he was no longer one the Club’s players for the current season 2019/2020”. As such, the Chamber underlined that the Claimant had waited approximately 3 months before contacting the Respondent to contest his de-registration from the team.

16. Furthermore, the members of the DRC highlighted that based on the documents on file, all outstanding remuneration until the end of the season 2018/2019 appeared to have been paid to the Claimant.

17. In light of the very specific circumstances of the present matter and even though none of the parties appears to have terminated the contractual relationship in writing, the Chamber was of the opinion that both parties were no longer interested in, or in a position to uphold a continuation of the contractual relationship.

18. Therefore, the DRC concluded that it seems, based on the information and documentation provided by the parties in the course of the present proceedings, that the parties did in fact mutually terminate the contract de facto at the end of the 2018/2019 season.

19. Consequently, the DRC decided that the claim of the Claimant for the payment of compensation must be rejected, considering that it was not established that the Respondent had unilaterally and prematurely terminated the contract.

20. In view of all the above, the Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Mahmoud Salma, is rejected.

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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 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.

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

Court of Arbitration for Sport

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Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer