Labour Disputes
Texto da decisão
REF. FPSD-13054
Decision of the
Dispute Resolution Chamber
passed on 30 May 2024
regarding an employment-related dispute concerning
the player Mubarak Mohammed Ahmed
BY:
Lívia SILVA KÄGI (Brazil / Switzerland), Deputy Chairwoman
Iñigo RIESTRA (Mexico), member
Stella MARIS JUNCOS (Argentina), member
CLAIMANT:
Mubarak Mohammed Ahmed, Nigeria
Represented by Endurance Iseri Ogbemudia
RESPONDENT:
El Mahalla El Kobra SC, Egypt
Represented by Mohammed Mitwally
pg. 2
REF. FPSD-13054
I. Facts of the case
1.
On 9 September 2023, the Nigerian player, Mubarak Mohammed Ahmed (hereinafter:
Claimant or player) and the Egyptian club, El Mahalla El Kobra SC (hereinafter: club or
Respondent) concluded an employment contract (hereinafter: contract) valid as from 9
September 2023 until 30 August 2026.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
- EGP 27,450 on 30 September 2023;
- EGP 27,450 on 30 January 2024;
- EGP 27,450 on 30 April 2024;
- EGP 27,450 on 30 June 2024;
- EGP 27,450 on 30 August 2024;
- EGP 31,650 on 30 September 2024;
- EGP 31,650 on 30 January 2025;
- EGP 31,650 on 30 April 2025;
- EGP 31,650 on 30 June 2025;
- EGP 31,650 on 30 August 2025;
- EGP 35,700 on 30 September 2025;
- EGP 35,700 on 30 January 2026;
- EGP 35,700 on 30 April 2026;
- EGP 35,700 on 30 June 2026;
- EGP 35,700 on 30 August 2026.
3.
Art. 4.6 of the contract states: “The player should bear any taxes of this contract and any fees
according to the law, the club shall deduct taxes from the player dues and transfer them to the
taxes under his responsibility”.
4.
On 29 November 2023, the Claimant put the Respondent in default and requested payment
of his “salaries of September 2023, October 2023 and November 2023”, within 15 days.
5.
On 15 December 2023, the player terminated the contract with the club due to outstanding
remuneration.
6.
According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed until today.
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REF. FPSD-13054
II. Proceedings before FIFA
7.
On 15 December 2023, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
8.
In his claim, the Claimant lodged a claim against the Respondent in front of FIFA and
requested payment of the following monies:
- EGP 11,437.50 as outstanding salary for September 2023, plus 5% interest p.a.;
- EGP 11,437.50 as outstanding salary for October 2023, plus 5% interest p.a.;
- EGP 11,437.50 as outstanding salary for November 2023, plus 5% interest p.a.;
- EGP 439,687.50 as compensation for breach of contract (residual value), plus 5%
interest p.a.
9.
In this framework, the player argued that he had just cause to terminate the contract due
to the remuneration that remained outstanding even after his default notice.
b. Position of the Respondent
10. In its reply, the Respondent rejected the player’s claim.
11. The club argued that the player had no just cause to terminate the contract.
12. First of all, it maintained that it remitted a payment of EGP 10,000 on 6 November 2023.
13. Moreover, the club pointed out that the amounts established in the contract are gross and
that the applicable taxes have to be deducted. Such calculation leads to net amount of the
instalments as follows:
- EGP 21,136.50 per instalment for season 2023/2024;
- EGP 24,362.80 per instalment for season 2024/2025;
- EGP 27,519.80 per instalment for season 2025/2026.
14. On account of the above, the club held that with its payment of EGP 10,000 it paid the
salaries for the months September and October 2023 and therefore the player had no just
cause to terminate the contract on 15 December 2023 since the next instalment was only
due in January 2024.
15. The club also held that the player’s default notice was sent to the wrong email address and
shall therefore be considered null and void.
16. What is more, the club alleged that the player refused to train and play official matches
since 11 November 2023 and therefore failed to submit his services.
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REF. FPSD-13054
c. Replica of the Claimant
17. In his replica, the Claimant reiterated his position and amended his claim, adding a request
for additional compensation of EGP 79,041.67 (6 monthly salaries) due to egregious
circumstances.
18. The player denies having been absent as alleged by the club. He held that the undated
notice submitted by the club was only delivered to him after had already terminated the
contract.
19. He also denied that the amounts established in the contract were net since the art. 4.6 of
the contract is too vague and does not specify which taxes and how much.
20. The player maintained that the club acted in bad faith since it initially promised a monthly
salary of EGP 100,000 to the player, but then let him sign the present contract upon arrival
in Egypt.
21. The Claimant confirmed having received a payment of EGP 10,000 from the president.
d. Duplica of the Respondent
22. In its duplica, the Respondent reiterated its position.
23. The club denied having offered a contract with a monthly salary of EGP 100,000 and
pointed out that there is no evidence of such offer.
24. The Respondent maintained that it “should have officially notified the player to attend the
training sessions indeed”.
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REF. FPSD-13054
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. 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 15 December 2023 and
submitted for decision on 30 May 2024. Taking into account the wording of art. 34 of the
March 2023 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.
26. 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, February 2024 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 a player and a club.
27. 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 (February 2024 edition), and
considering that the present claim was lodged on 15 December 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
28. 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
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
29. 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.
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REF. FPSD-13054
i. Main legal discussion and considerations
30. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the matter at hand concerns a claim of a player
against a club for breach of contract.
31. In this context, the Chamber acknowledged that its task was to detail if a party breached
the contract and to decide on the consequences thereof.
32. The Chamber duly noted that according to the Claimant, he terminated the contract with
just cause due to outstanding remuneration.
33. On the other hand, the DRC also acknowledged the arguments of the Respondent, which
argued that the player was absent from training and matches as of 11 November 2023,
that the amount in the contract was defined as gross and not net, as well as that it remitted
a partial payment (which equalled the salaries for September and October 2023.
34. In this framework, the members of the Chamber started to analyse the content of the
contract, i.e. art. 4.6 and established that the clause is clear in the sense that the club would
deduct taxes at source. In this regard, however the DRC pointed out that no proof payment
of such taxes was provided and therefore it remained unproved if such payments were
effectively made. Consequently, the DRC decided to take into account the salary as
quantified in the contract, without any deductions.
35. As to the player’s alleged absence, which he denies, the Chamber wished to emphasize that
the club failed to send him any notification before the termination of the contract and
therefore it rejected the club’s argument.
36. As to the payments: The DRC noted that the contract establishes five instalments
throughout every contractual year. On the date of the player’s default (i.e. 29 November
2023) as well as on the date of termination (i.e. 15 December 2024) only the first instalment
of EGP 27,450, payable on 30 September 2023, had fallen due. The second instalment, in
the same amount, was only payable on 30 January 2024. The club provides evidence and
the player acknowledges that the amount of EGP 10,000 had been paid by the club on 6
November 2023. Therefore, only the amount of EGP 17,450 remained outstanding on the
date of termination. As the player’s salaries were not due on a monthly basis, in order to
establish whether the latter had had a just cause, the Chamber calculated the pro rata
amount due per month to the player for the first season and arrived at EGP 11,437.50 (EGP
27,450x5 divided by 12). Considering the foregoing, the remuneration outstanding at the
date of termination, i.e. EGP 17,450, corresponded to approximately 1.5 salaries and,
consequently, did not reach the threshold of 2 monthly salaries demanded for the
application of just cause, as per art. 14bis of the RSTP.
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REF. FPSD-13054
37. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a
contract without prior warning. In other words, only when there are objective criteria which
do not reasonably permit to expect the continuation of the employment relationship
between the parties, a contract may be terminated prematurely. Hence, if there are more
lenient measures which can be taken in order for an employer to assure the employee’s
fulfilment of his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only be an
ultima ratio.
38. With the above in mind and after having carefully analysed the parties’ submissions, the
Chamber concluded that the outstanding remuneration of clearly less than two monthly
salaries cannot be deemed as a substantial breach of an employment contract, capable of
triggering the consequences of an unlawful termination and that the player therefore had
no just cause to terminate the contract.
39. On account of the above, the DRC decided that the club is not liable to pay any
compensation for breach of contract to the player.
40. However, in application of the principle of pacta sunt servanda, the members of the
Chamber decided that the player is in any case entitled to his full remuneration for services
provided until the date of termination, i.e. until 15 December 2023. Based on a pro-rata
calculation, as described in point 36.above, the player is entitled to the total amount of EGP
30,031.25, as outstanding remuneration, broken down as follows:
-
EGP 1,437.50 as outstanding pro rata salary for September 2023 (taking into account
the partial payment of EGP 10,000)
EGP 11,437.50 as outstanding pro rata salary for October 2023;
EGP 11,437.50 as outstanding pro rata salary for November 2023;
EGP 5,718.75 as pro rata salary for December 2023 (until 15 December 2023)
41. In addition, in accordance with its long-standing jurisprudence, the Chamber decided to
award interest of 5% p.a. as of 16 December 2023.
ii. Compliance with monetary decisions
42. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 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.
43. In this regard, the DRC highlighted 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
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REF. FPSD-13054
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
44. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
45. 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 attached
to the present decision.
46. 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. Costs
47. 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.
48. 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.
49. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-13054
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mubarak Mohammed Ahmed, is partially accepted.
2.
The Respondent, El Mahalla El Kobra SC, must pay to the Claimant the following amount(s):
- EGP 30,031.25 as outstanding remuneration plus 5% interest p.a. as from 16 December
2023 until the date of effective payment;
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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 following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13054
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
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