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 12 February 2020
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 12 February 2020,
in the following composition:
Omar Ongaro (Italy), Deputy Chairman
José Luis Andrade (Portugal), member
Johan van Gaalen (South Africa), member
on the claim presented by the player,
Abou Bakr Al Mel, Lebano
represented by Mr Menno Teunissen
as Claimant
against the club,
Kelantan Football Association, Malaysia
as Respondent
regarding an employment-related dispute between the parties
I. Facts of the case
1. On 19 May 2017, the Lebanese player, Abou Bakr Al Mel (hereinafter: the player or the
Claimant) and the Malaysian club, Kelantan Football Association (hereinafter: the club or
the Respondent) concluded an employment contract (hereinafter: the contract) valid as
from the date of signature until 19 November 2018.
2. Pursuant to Schedule A of the contract, the Claimant was, inter alia, entitled to a monthly
remuneration of USD 13,000, to be paid “no later than the 7th of the following month”.
3. Additionally, according to Schedule B of the contract, the Claimant was further entitled to
receive USD 65,000, corresponding to the sign-on fee, and “two (2) return flight ticket
during the Player Contract term”.
4. According to the Claimant, on 19 November 2017, the Respondent allowed him to go
on holidays until 24 November 2017. In this context, pursuant to Schedule B d.4 of the
contract, the player requested the club to provide him with a flight ticket. According
to the Claimant, despite the fact that the Respondent “did no react to this demand”,
he “travelled back to Malaysia at his own [expense]”.
5. Additionally, the Claimant held that the Respondent failed to pay the monthly salary
for November 2017. In this respect, on 12 December 2017, the Claimant put the
Respondent in default in writing that the monthly salary for November 2017 was
outstanding to him. Furthermore, by means of said default letter, the Claimant
requested the club to provide him with the training schedule so that he could “resume
duties” and the reimbursement of the flight tickets.
6. On 15 December 2017, the club informed the player in writing that it had decided to
terminate the employment relationship “with immediate effect”, holding that the
player “failed to meet the club sporting expectations as a foreign player“.
7. On 7 March 2018, the Claimant lodged a claim against the Respondent in front of FIFA,
requesting the total amount of USD 337,000, plus 5% interest p.a., as follows:
a) USD 78,000 as outstanding remuneration:
- USD 65,000 corresponding to the sign-on fee;
- USD 13,000 corresponding to the monthly salary for November 2017.
b) USD 259,000 as compensation for breach of contract:
- USD 156,000 corresponding to the monthly salaries for the period December 2017
– December 2018;
- USD 20,000 corresponding to the transport and rental allowances for the period
December 2017 – December 2018;
- USD 78,000 corresponding to the specifity of the sport.
8. In its reaction to the claim, the Respondent rejected the claim and explained that, on 15
December 2017, the parties had allegedly signed a mutual termination agreement.
9. In his reaction, the Claimant stated that he had “never seen” or “signed” the termination
letter provided by the Respondent, and that his signature on said contract is forged.
10. In view of the above, in order to verify the authenticity of the mutual termination letter,
on 15 May 2019, FIFA requested the Respondent to provide the original version of the
“Release Letter”. In spite of having been requested to do so, the Respondent did not
provide the original document.
11. In its final comments, the Respondent rejected the Claimant’s argumentation and
reiterated its previous statements. In this regard, the Respondent pointed out that “due to
poor performance” of the player, a termination letter was allegedly sent to the latter on
20 November 2017. In this context, the club further indicated that the contract was
terminated as from 31 October 2017.
12. According to the Respondent, despite having sent a termination letter to the Claimant on
20 November 2017, the Claimant “returned to Kelantan without our permission”, In this
respect, the club maintained that “after deliberately discussion between [the club] and
[the] player, both parties agreed to be released” by signing the a mutual termination
agreement on 15 December 2017.
13. Lastly, with regard to the payment of the sign-on fee, the club underlined that it had made
the payment on 24 May 2017.
14. In relation to his contractual situation, the Claimant stated that he had signed an
employment contract on 16 July 2018 with the Indonesian club, PSIS Semarang, valid as
from the date of signature until 16 January 2019. Pursuant to the employment contract
concluded with the Indonesian club, the player is entitled to a total remuneration of USD
25,100, as follows: a) USD 5,000 as a sign-on fee; b) a monthly salary of USD 3,350, payable
during six months.
II. Considerations of the DRC
1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
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 7 March 2018. Taking into account the wording of art. 21 of the 2018 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.
2. Subsequently, the DRC 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 2020), the DRC is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international
dimension between a Lebanese player and a Malaysian club.
3. In continuation, 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, and considering that the
present claim was lodged on 7 March 2018, the January 2018 edition of said regulations
(hereinafter: Regulations) were applicable to the matter at hand as to the substance.
4. The competence of the DRC and the applicable regulations having been established, the
DRC entered into the substance of the matter. In this respect, it started by acknowledging
all the above-mentioned facts, the arguments and the documentation submitted by the
Claimant and the Respondent. 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.
5. First of all, the DRC noted that the parties entered into an employment contract valid as
from 19 May 2017 until 19 November 2018, according to which the Respondent undertook
to pay the Claimant a remuneration of USD 234,000 payable in 18 instalments of USD of
USD 13,000 to be paid “no later than the 7th of the following month”. Furthermore,
pursuant to Schedule B of the contract, the Chamber noted that the club further
committed itself to pay a sign-on fee of USD 65,000.
6. In continuation, the DRC recalled that the Claimant lodged a claim in front of FIFA on 7
March 2018 for breach of contract, requesting inter alia the amount of USD 78,000 as
outstanding remuneration, as well as the amount of USD 259,000 as compensation for the
alleged breach of contract by the Respondent.
7. Moreover, the DRC took note of the Respondent’s statement, according to which it
mutually agreed with the player upon a termination of the aforesaid employment
contract. In this respect, the Chamber also took due note that the Respondent provided
FIFA with a copy of this termination agreement dated 15 December 2017, allegedly signed
between the parties.
8. In this respect, the Chamber duly noted that the Claimant, for his part, denied having
signed the mutual termination agreement at hand and stressed that the Respondent
forged his signature. Consequently, the Claimant contested the authenticity of the
agreement.
9. Along those lines, and prior to entering into the substance of the matter, the Chamber
concurred that it firstly had to proceed to an analysis of the contents of the termination
agreement and in particular, to assess its validity. In this respect, the DRC emphasized that
the original of the mutual termination agreement was not provided by the Respondent,
despite having been requested to do so.
10. In view of the above, considering that the Respondent did not provide the original mutual
termination agreement, the DRC agreed to conclude that said document must not be
considered as a legally binding agreement.
11. In continuation, the members of the Chamber established that the second issue at stake is
determining whether the Respondent had just cause to terminate the contract with the
Claimant on 15 December 2017. In this respect, the DRC deemed it essential to make a brief
recollection of the Claimant’s arguments regarding the contract termination, and in
particular, verify which amount, if any, had in fact remained outstanding on the date of
termination.
12. First of all, the DRC took note that, on 24 November 2017, the player requested the club
to provide him with a flight ticket in accordance with Schedule B of the contract. In this
respect, the Claimant stated that the Respondent neither paid nor replied.
13. In addition, the DRC noted that, according to the player, the club further failed to pay his
monthly salary for November 2017. In this context, the DRC acknowledged that the
Claimant, on 12 December 2017, sent a default letter to the Respondent requesting the
payment of his monthly salary for November 2017 and the reimbursement of the flight
tickets.
14. Subsequently, the DRC took note that, in response to the Claimant’s default letter, the
Respondent sent a termination letter dated 15 December 2017, holding that the player
“failed to meet the [club’s] sporting expectations as a foreign player”.
15. In addition, the Chamber pointed out that, in accordance with its longstanding
jurisprudence and as a general principle, a player cannot be dismissed for alleged poor
performance. Thus, the Chamber emphasised that poor or unsatisfactory performance
cannot be considered as a just cause to terminate a contract. Hence, the Chamber
considered that by terminating the contract based on poor performance, the Respondent
acted in an abusive manner and without just cause.
16. In view of the aforementioned, the Chamber stated that the unilateral termination of the
employment contract on 15 December 2017 by the Respondent constitutes a breach of
contract without just cause. Consequently, the Respondent is to be held liable for the
payment of an amount of money to the Claimant as compensation for such unilateral
breach without just cause.
17. However, prior to establishing the amount of compensation for breach of contract due to
the Claimant by the Respondent, the DRC proceeded with the calculation of the
outstanding monies payable to the Claimant under the terms of the employment contract
until the date of termination, i.e. 15 December 2017.
18. Taking into consideration the Claimant’s claim as well as the reasons previously exposed,
the DRC concluded that, in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations as per the employment contract
concluded with the Claimant and, consequently, is to be held liable to pay him the total
amount of USD 78,000, as outstanding salary.
19. In addition, taking into account the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the
Claimant interest of 5% p.a. on the amount of USD 78,000 as from 8 December 2017 until
the date of effective payment.
20. Equally, with regard to the Claimant’s claim pertaining to flight tickets, the Chamber noted
that the contract does not mention a specific amount to be paid to the Claimant in this
regard and that the Claimant did not provide any evidence that the amount of USD 5,000
was indeed spent by him on flight tickets and would have to be reimbursed by the club.
Notwithstanding the foregoing, the DRC, codirecting the Chamber’s established
jurisprudence as well as the content of the contract (cf. point I.3 above), decided that the
Respondent must pay to the Claimant the amount of USD 1,050 for a round trip flight
ticket between Lebanon and Malaysia, on the basis of the information provided by FIFA
Travel.
21. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations on the Status and Transfer of Players, the Claimant is entitled to receive from
the Respondent compensation for breach of contract in addition to any outstanding
salaries on the basis of the relevant employment contract.
22. In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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.
23. In application of the relevant provision, the DRC 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 DRC established that no such
compensation clause was included in the employment contract at the basis of the matter
at stake.
24. Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the Chamber took into account the remuneration due to the Claimant in accordance with
the employment contract as well as the time remaining on the same contract, along with
the professional situation of the Claimant after the early termination occurred. At the time
of the termination of the employment contract on 15 December 2017, the contract would
run until 19 November 2018, i.e. for another 11.5 months. Consequently, the Chamber
concluded that the remaining value of the contract as from its early termination by the
club until the natural expiry of the contract amounts to USD 149,500 and that such amount
shall serve as the basis for the final determination of the amount of compensation for
breach of contract.
25. In continuation, the DRC verified as to whether the Claimant 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. According to art. 17 par. 1 point ii) of the
Regulations, such remuneration under a new employment contract shall be deducted from
the residual value of the contract that was terminated early, in the calculation of the
amount of compensation for breach of contract (“the mitigated compensation”).
26. In this respect, the DRC noted that, on 16 July 2018, the Claimant found employment with
Club PSIS Semarang, from Indonesia. In accordance with the pertinent employment
contracts, which have been made available by the Claimant, valid until 16 January 2019,
the Claimant was entitled to receive a monthly salary in the amount of USD 3,350 and a
sign-on fee in the amount of USD 5,000. Consequently, the Chamber established that the
value of the new employment contract concluded between the Claimant and the new club
for the period as from mid-July until mid-November 2018 amounted to USD 18,400.
27. Consequently, in view of the above, the DRC decided that the Respondent must pay the
total amount of USD 131,100 to the Claimant, which is considered by the DRC to be a
reasonable and justified amount as compensation for breach of contract.
28. In addition, taking into account the Claimant’s request, the DRC decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation
as from 7 March 2018 until the date of effective payment.
29. Furthermore, the Chamber pointed out that in the event that the amount due was not
paid by the Respondent within the stated time limit, the present matter shall be submitted,
upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
30. Finally, the DRC concluded its deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
*****
III. Decision of the DRC
1. The claim of the Claimant, Mr Abou Bakr Al Mel, is partially accepted.
2. The Respondent, Kelantan Football Association, has to pay to the Claimant, within 30
days as from the date of notification of this decision, the amount of USD 78,000, plus 5%
interest p.a. as from 8 December 2017 until the date of effective payment, and the
amount of USD 1,050.
3. The Respondent has to pay to the Claimant, within 30 days as from the date of
notification of this decision, compensation for breach of contract in the amount of USD
131,100, plus 5% interest p.a. on said amount as from 7 March 2018 until the date of
effective payment.
4. In the event that the amounts due to the Claimant in accordance with the
aforementioned points III.2. and III.3. above are not paid by the Respondent within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
5. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
6. Any further claim lodged by the Claimant is rejected.
*****
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Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the motivated decision (legal remedy):
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:
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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