FIFA - Decisión disputa Elfeky 26102023

REF. FPSD-11112

Decision of the Dispute Resolution Chamber passed on 26 October 2023 regarding an employment-related dispute concerning the player Ahmed Achraf Mohamed Feki BY: Clifford J. Hendel (USA & France), Deputy Chairperson Jorge Gutiérrez (Costa Rica), member Stella Maris Juncos (Argentina), member

CLAIMANT:

Mr Ahmed Achraf Mohamed Feki

RESPONDENT:

Club Al Faisaly, Saudi Arabia pg. 2

REF. FPSD-11112

I. Facts of the case

1. On 24 October 2020, the player, Ahmee Achraf Mohamed Feki, and Al Faisaly concluded an employment contract valid as from the date of signature until 24 June

2024.

2. The contract designated the parties as follows:

3. According to art. 4 of the contract, the player was entitled to the following: - SAR 600,000 as sign-on-fee payable as follow: - SAR 400,000 at the signature of the contract. - SAR 200,000 on 01/01/2021. - SAR 136,363.00 as monthly salary. - SAR 30,000 as accommodation allowance.

4. On 10 March 2021, the player suffered an injury during an official match.

5. According to the player, the club subsequently decided to reduce his salary as

follows: Month Salary Payment Percentage August 2021 136,363 SAR 102,272 SAR 75% September 2021 136,363 SAR 102,272 SAR 75% October 2021 136,363 SAR 102,272 SAR 75% November 2021 136,363 SAR 102,272 SAR 75% December 2021 136,363 SAR 68,182 SAR 50% January 2022 136,363 SAR 68,182 SAR 50% February 2022 136,363 SAR 68,182 SAR 50%

March 2022 136,363 SAR 68,182 SAR 50%

6. On 19 July 2022, the club sent a termination notice to the player, indicating the following: “Given that your injury persists for more than a year without a return-to-play date, preventing you from joining the team and taking part in trainings and matches, that make the enforcement of the contract concluded between the two parties impossible and the contract is null and void.

So, for your information, your contract with Al-Faisaly Club is terminated.”

7. The player concluded an employment contract with the club Altaawoun, valid as pg. 3

REF. FPSD-11112 from 1 September 2023 until 30 June 2025.

8. Accordingly, the player was entitled to the following net monthly remuneration: - First year: SAR 25,000 - Second year: SAR 75,000

(it can be estimated that, from 1 September 2023 until 24 June 2024, the player would earn 1025,000 = SAR 250,000).

II. Proceedings before FIFA

9. On 28 July 2023, the player lodged a claim before the FIFA Football Tribunal for outstanding remuneration and breach of contract without just cause, and requested the payment of the following amounts: - Outstanding remuneration. - 34,091 SAR as outstanding amount for the August 2021 salary plus 5% p.a. from 01/09/2021 - 34,091 SAR as outstanding amount for the September 2021 salary plus 5% p.a. from 01/10/2021 . - 34,091 SAR as outstanding amount for the October 2021 salary plus 5% p.a. from 01/11/2021 . - 34,091 SAR as outstanding amount for the November 2021 salary plus 5% p.a. from 01/12/2021 - 68,181 SAR as outstanding amount for the December 2021 salary plus 5% p.a.

from 01/01/2022 - 68,181 SAR as outstanding amount for the January 2022 salary plus 5% p.a. from 01/02/2022 - 68,181 SAR as outstanding amount for the February 2022 salary plus 5% p.a. from 01/03/2022 - 68,181 SAR as outstanding amount for the March 2022 salary plus 5% p.a. from 01/04/2022 . - 136,363 SAR for the full April 2022 salary plus 5% p.a. from 01/05/2022 - 136,363 SAR for the full May 2022 salary plus 5% p.a. from 01/06/2022 - 136,363 SAR for the full June 2022 salary plus 5% p.a. from 01/07/2022 - 86,363.23 SAR for 19 days work in July 2022 plus 5% p.a. from 01/08/2022 . - 282,086.64 SAR as medical expenses plus interest of 5% p.a. from 19 July 2022 until the effective payment - Compensation: - SAR 3,992,712 compensation for breach of the contract plus 5% p.a. as from the date of notification of 19 July 2022

10. In its reply, the Respondent argued that FIFA is not competent to deal with the matter insofar the player is a Saudi national, and not Egyptian, as claimed. pg. 4

REF. FPSD-11112

11. The player attached a copy of the player’s birth certificate, which establishes the

following:

12. The club further provided a copy of the player’s registration in Saudi Arabia, which

indicates the following:

13. As to the substance, and concerning the injury, the club argued that the player was responsible for his own non-recovery and therefore not entitled to a termination indemnity.

14. The club acknowledged that the player had suffered a cruciate ligament injury in

March 2021, but argued that it had offered to have him operated on by its medical partner. The club argued that the player had preferred to have surgery with another doctor and that, subsequently, the surgery had not been a success. The club argued that the player had not followed the necessary treatment.

15. The club argued that the player’s refusal to accept its offer of surgery and his failure to follow the necessary treatment after surgery demonstrated that he was responsible for his own non-recovery. As a result, the club argued that the player was not entitled to a termination indemnity.

16. The club also argued that it had fully complied with its obligations under the SAFF player status regulations and that it had always acted in good faith towards the player. pg. 5

REF. FPSD-11112

17. In conclusion, the club asked to reject the player’s request for a termination indemnity.

18. In his replica, the Claimant considered that there is no doubt that he is an Egyptian citizen and the club is from Saudi Arabia and, as a result, there is clearly an international dimension to the dispute.

19. The Claimant attached “a copy of e-visa entry to Kingdom of Saudi Arabia issued by the club to the player which put a term to the discussion in relation with his nationality (E-8) because no Saudi citizen would need a visa to enter to Kingdom of

Saudi Arabia.”

20. In relation to his injury, the player highlighted that the termination letter did not make any reference to the following of a particular treatment.

21. In its duplica, the Respondent insisted in its previous position and argued that the player was transferred in the Domestic TMS since he was transferred from the Saudi

club, Al Hilal.

22. Accordingly, the Respondent explained that the player signed a contract with the club Al Tawoon with his Saudi passport. pg. 6

REF. FPSD-11112

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

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 presented to FIFA on 28 July 2023 and submitted for decision on 26 October 2023. Taking into account the wording of art. 34 of the October 2022 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.

2. 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 (October 2022 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 an Egyptian player and a Saudi club.

3. However, on this note, the Chamber observed that the competence of FIFA is disputed by the Respondent, since it argued that the matter is not affected by an international dimension. In particular, the Respondent argued that the player is a Saudi national.

4. Nevertheless, after duly examining the evidence on file, the Chamber observed that the club did not prove this allegation. In fact, the contract concluded between the parties clearly mentions the player as an Egyptian national, regardless of the fact that he was apparently born in Saudi Arabia to Egyptian parents. Therefore, FIFA is competent to deal with this matter.

5. 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 (May 2023 edition), and considering that the present claim was lodged on 28 July 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

6. 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 pg. 7

REF. FPSD-11112 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

7. 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.

1. Main legal discussion and considerations

8. The foregoing having been established, the Chamber moved to the substance of the matter and took note of the fact that the parties were bound by an employment contract valid as from 24 October 2020 until 24 June 2024.

9. The Chamber then observed that the club unilaterally terminated the contract on 19 July 2023, indicating the following “Given that your injury persists for more than a year without a return-to-play date, preventing you from joining the team and taking part in trainings and matches, that make the enforcement of the contract concluded between the two parties impossible and the contract is null and void.”

10. In this respect, the Chamber noted that, according to Article 18 par. 4 of the Regulations “the validity of a contract may not be made subject to a successful medical examination.

11. Thus, the Chamber considered that the termination of the player’s contract solely because of his injury is a clear breach of the FIFA regulations.

12. Moreover, the Chamber observed that the club has not provided any evidence to support its claim that the player did not follow the appropriate procedure after his injury. The Chamber observed that, in reality, the termination letter does not cite any such breach and instead simply attributes the termination to the injury itself.

13. In fact, the contents of the termination letter itself are clear and unambiguous: the player’s contract was terminated because of his injury and the player’s inability to recover. The Chamber merely confirmed that this conduct of the club is obviously wrong, beyond any reasonable degree. By terminating the contract on the basis of a medical condition - the player's injury - the club essentially indicated a complete disregard for the fundamental principles enshrined in the Regulations.

14. Given the clear breach of contract and the violation of FIFA regulations, it is evident that the player is entitled to compensation. pg. 8

REF. FPSD-11112 ii. Consequences

15. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the

Respondent.

16. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, can be established as follows:

Month Outstanding Salary Amount (SAR) Aug-21 34,091 Sep-21 34,091 Oct-21 34,091 Nov-21 34,091 Dec-21 68,181 Jan-22 68,181 Feb-22 68,181 Mar-22 68,181 Apr-22 136,363 May-22 136,363 Jun-22 136,363 Jul-22 136,363

Total outstanding: 954,540.00

17. In relation to said outstanding amounts, the Chamber considered that the deductions

made by the club in relation to the player's injury are unacceptable under any circumstance.

18. 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. SAR 954,520, as detailed above.

19. 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 the due dates until the date of effective payment.

20. The Chamber also decided to award a reimbursement of 282,086.64 SAR for medical expenses. Indeed, the Chamber considered that the player's request for reimbursement was not only supported by a substantial body of evidence that substantiated the incurred medical costs but also aligned with the general duty to provide medical treatment. pg. 9

REF. FPSD-11112

21. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Chamber 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.

22. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the

contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

23. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

24. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract from the date of its unilateral termination until its end date.

25. In particular, the Chamber observed that, from August 2022 until June 2024, the player would earn 23136,363 = SAR 3,136,349.

26. Consequently, the Chamber concluded that the amount of SAR 3,136,349 serves as the basis for the determination of the amount of compensation for breach of contract.

27. In continuation, the Chamber verified as to 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 enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

28. Indeed, the player found employment with Altaawoun. In accordance with the pertinent employment contract, the player was entitled to the following net monthly remuneration: - First year: SAR 25,000 pg. 10

REF. FPSD-11112

• Second year: SAR 75,000

29. Therefore, the Chamber concluded that the player mitigated his damages in the total amount of SAR 250,000, corresponding to the amounts he would earn during the overlapping period comprised between 1 September 2023 until 24 June 2024 (i.e.

25,00010).

30. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of SAR 2,886,349 (i.e. 3,136,349-250,000) which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

31. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of 19 July 2022 (i.e. the date of termination) until the date of effective payment.

32. 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 available in the FIFA Legal Portal.

33. 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. Sporting sanctions

34. In continuation, the Chamber focused on the further consequences of the breach of contract in question and, in this respect, it addressed the question of sporting sanctions against the club in accordance with art. 17 par. 4 of the Regulations. The cited provision stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall be imposed on any club found to be in breach of contract during the protected period.

35. In this respect, the Chamber referred to item 7 of the “Definitions” section of the

Regulations, which stipulates inter alia that the protected period shall last “for three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional”.

36. In this respect, the Chamber took note that the player was born on 1 December 1993 and the relevant contract with the club was concluded on 24 October 2020, i.e., when the player was 27 years old. The protected period would then extend for three entire seasons or three years from the entry into force of the contract in October 2020, whichever comes first. pg. 11

REF. FPSD-11112

37. Furthermore, the Chamber noted that the club terminated the contract without just cause on 19 July 2022 (i.e. 20 months and 3 weeks following the conclusion of the contract). The breach of contract by the club had therefore occurred within the protected period.

38. In this respect, the Chamber wished to emphasize that, as it is the case, terminating a player's contract solely based on their inability to recover from an injury sets an unacceptable and concerning precedent. This action not only disregards the player's rights but also undermines the very essence of fair and ethical contractual agreements, and it also constitutes a blatant disregard to the Regulations. It sends a message that clubs can exploit a player's injury, as an excuse to sever the employment relationship. As a result, the Chamber considered that it is necessary for the Respondent to face an exemplary sanction to deter other clubs from following this negative example.

39. Consequently, the Chamber decided that, by virtue of art. 17 par. 4 of the Regulations, the club shall be sanctioned with a ban from registering any new players, either nationally or internationally, for two entire and consecutive registration periods.

pg. 12

REF. FPSD-11112

e. Costs

40. 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.

41. 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.

42. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 13

REF. FPSD-11112

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Ahmed Achraf Mohamed Feki, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Al Faisaly, must pay to the Claimant the following amounts: -SAR 954,540 as outstanding remuneration plus interest p.a. as follows: - 5% interest p.a. over the amount of 34,091 SAR from 1 September 2021 until the date of effective payment. - 5% interest p.a. over the amount of 34,091 SAR from 1 October 2021 until the date of effective payment. - 5% interest p.a. over the amount of 34,091 SAR from 1 November 2021 until the date of effective payment. - 5% interest p.a. over the amount of 34,091 SAR from 1 December 2021 until the date of effective payment. - 5% interest p.a. over the amount of 68,181 SAR from 1 January 2022 until the date of effective payment. - 5% interest p.a. over the amount of 68,181 SAR from 1 February 2022 until the date of effective payment.

• 5% interest p.a. over the amount of 68,181 SAR from 1 March 2022 until the date of effective payment. - 5% interest p.a. over the amount of 68,181 SAR from 1 April 2022 until the date of effective payment. - 5% interest p.a. over the amount of 136,363 SAR from 1 May 2022 until the date of effective payment. - 5% interest p.a. over the amount of 136,363 SAR from 1 June 2022 until the date of effective payment. - 5% interest p.a. over the amount of 136,363 SAR from 1 July 2022 until the date of effective payment. - 5% interest p.a. over the amount of 136,363 SAR from 1 August 2022 until the date of effective payment. -282,086.64 SAR as reimbursement for medical expenses. -SAR 2,886,349 as compensation for breach of contract without just cause plus 5% interest p.a. as from 19 June 2022 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. Full payment (including all applicable interest) shall be made to the bank account indicated in the

Bank Account Registration Form.

6. Pursuant to art. 17 par. 4 of the Regulations, the Respondent is be banned from registering any new players, either nationally or internationally, for two entire and consecutive registration periods.

7. 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 present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

8. The submission to the FIFA Disciplinary Committee shall be at the request of the Claimant only in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of

Players.

9. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 14

REF. FPSD-11112

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 | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 15