Labour Disputes
Texto da decisão
REF FPSD-6876
Decision of the
Dispute Resolution Chamber
passed on 26 January 2023
regarding an employment-related dispute concerning the player Carmelo
Algarañaz Añez
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Jorge Gutiérrez (Costa Rica), member
Stijn Boeykens (Belgium), member
CLAIMANT/COUNTER-RESPONDENT 1:
Carmelo Algarañaz Añez, Bolivia
Represented by Ricardo Alipaz
RESPONDENT/COUNTER-CLAIMANT:
Club Ismaily SC, Egypt
Represented by Sport Makers Law Firm
COUNTER-RESPONDENT 2:
Club Always Ready, Bolivia
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I. Facts of the case
1.
On 3 January 2022, the Egyptian club Ismaily SC (hereinafter: the Respondent/Counterclaimant or Ismaily) and the Bolivian club Always Ready FC (hereinafter: the CounterRespondent 2 or ARFC) signed an agreement by virtue of which the Bolivian player Carmelo
Algarañaz Añez (hereinafter: the Player or the Claimant/Counter-Respondent 1) was
transferred from ARFC to Ismaily.
2.
Contextually, on 4 January 2022, the Player and Ismaily signed an employment agreement
(hereinafter: the Contract), to be valid until the end of the season 2022/2023 (i.e., 31 August
2023).
3.
Pursuant to the Contract, Ismaily undertook to pay the Player under the following
(amounts expressed in US Dollars):
“Second: value of the contract:
The two parties agreed on a value of the contract ($466,666) gross amount (four hundred sixtysix thousand, six hundred sixty-six) to be distributed as follows:
First season value 2021/2022
An amount of USD 160,000 (one hundred sixty thousand dollars) divided as follows:
1st Installment an amount of $80,000 only eighty thousand USD paid on 04/01/2022
2nd Installment an amount of $10,000 only ten thousand USD paid on 01/03/2022
3rd Installment an amount of $10,000 only ten thousand USD paid on 01/04/2022
4th Installment an amount of $10,000 only ten thousand USD paid on 01/05/2022
5th Installment an amount of $10,000 only ten thousand USD paid on 01/07/2022
6th Installment an amount of $40,000 only forty thousand USD paid on 31/08/2022
Second season value 2022/2023
An amount of USD 306,666 (three hundred six thousand six hundred sixty-six) divided as
follows:
1st Installment an amount of $76,668 USD paid on 15/09/2022
2nd Installment an amount of $15,333 USD paid on 01/10/2022
3rd Installment an amount of $15,333 USD paid on 01/11/2022
4th Installment an amount of $15,333 USD paid on 01/12/2022
5th Installment an amount of $15,333 USD paid on 01/01/2023
6th Installment an amount of $15,333 USD paid on 01/02/2023
7th Installment an amount of $15,333 USD paid on 01/03/2023
8th Installment an amount of $15,333 USD paid on 01/04/2023
9th Installment an amount of $15,333 USD paid on 01/05/2023
10th Installment an amount of $15,333 USD paid on 10/06/2023
11th Installment an amount of $15,333 USD paid on 01/07/2023
12th Installment an amount of $76,668 USD paid on 31/08/2023”
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4.
Furthermore, in accordance with clause 4 of the Contract, the parties stipulated that “the
player should bear the taxes of this contract and other remuneration according to the law, the
club shall deduct taxes from the player dues and transfer them to the taxes under his
responsibility”.
5.
Finally, under clause 6 of the Contract, the parties stipulated the following compensation:
[…]
e. the Player shall acknowledge and undertake that he has no right in the future to evade the
abovementioned obligations for any reason whatsoever. In the event of breaching any of these
terms of the Contract, the player shall pay three million Euros to the first party (the club) as
final agreed contractual compensation for any damage caused, opportunity missed, or any
loss incurred to the club. […]
6.
On 17 January 2022, the Player received two cheques from the Respondent/Counterclaimant, respectively for the amount of USD 60,000 and EGP (Egyptian Pounds) 75,000.
7.
By correspondence dated 13 April 2022, the Player put the Respondent/Counter-claimant
in default of payment of USD 40,000.
8.
On 28 April 2022, the Bolivian embassy in Cairo sent a letter to the “Office of the
International Organization for Immigration” in Cairo, and stated it have been informed of
the illegal withholding by the Respondent/Counter-claimant of passports from several
immigrants, amongst which the Player, allegedly because of the Respondent/Counterclaimant’s fear that the foreign staff or players might escape Egypt once received their
salary in advance. Accordingly, the Bolivian embassy requested the mentioned addressee
to take care of the situation in order to safeguard the human rights of labourers by the
Respondent/Counter-claimant.
9.
On 11 May 2022, the Player issued a second default letter granting the
Respondent/Counter-claimant 15 days to pay USD 50,000 as outstanding salaries,
otherwise he would have terminated the Contract with just cause. Contextually, the Player
requested the Respondent/Counter-claimant to cease the withholding his passport and
to return it to the Player immediately, otherwise he would initiate criminal actions against
the Respondent/Counter-claimant.
10. On 22 May 2022, the Respondent/Counter-claimant replied to the Player’s
correspondence, objecting to the latter’s calculation of the amounts allegedly overdue. In
particular, the Respondent/Counter-claimant argued that the only outstanding sum was
USD 6,745 and that any termination of the Contract by hand of the Player would have
been without just cause.
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11. On 24 May 2022, the Player answered to the Respondent/Counter-claimant’s letter and
rebutted all its arguments, thus insisting on his previous demands forwarded by his letter
dated 11 May 2022.
12. On 27 May 2022, the Player sent another letter to the Respondent/Counter-claimant,
requesting the latter to cease its abusive conduct towards the Player and contextually
accusing the Respondent/Counter-claimant of having locked the Player in an office,
without the presence of a translator, in order to force him to sign documents to waive his
financial entitlements.
13. On 29 May 2022, the Player notified Ismaily the unilateral termination of the Contract to
due overdue payables and abusive misconduct.
14. On 3 July 2022, the Player signed a new employment agreement with ARFC, to be valid as
from the said date until 3 July 2023 and for a total remuneration of USD 88,000.
II. Proceedings before FIFA
15. On 25 July 2022 the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Player
16. In his claim, the Player argued that the Respondent/Counter-claimant acted in an abusive
manner towards him and other players.
17. In particular, the Player stated that he was forced to train separately from the rest of the
team as of 22 February 2022 until the day of termination of the Contract.
18. Furthermore, the Player stated that the Respondent/Counter-claimant repeatedly
refused to return his passport, which was withheld despite several requests from the
Player as well as from the Bolivian embassy.
19. In this respect, the Player explained that in order to carry out the recruitment procedures
and visa permits, the Respondent/Counter-claimant would typically need few days just to
check the passport while after that phase there would be no reason whatsoever to
withhold the document.
20. Accordingly, in the Player’s opinion, Ismaily’s abusive conduct represents a violation of
international labour treaties and for the international labour law it would be comparable
to the crimes of kidnapping and human trafficking.
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21. Beside alleged Ismaily’s misconduct, the Player alleged that, at the time of the second
default letter dated 11 May 2022, the overdue payables by the Respondent/Counterclaimant amounted to USD 50,000, and they were corresponding to the following sums:
•
•
•
•
USD 20,000 as part of the first salary due in January 2022;
USD 10,000 as salary for the month of February 2022;
USD 10,000 as salary for the month of March 2022;
USD 10,000 as salary for the month of April 2022.
22. As a consequence, the Player held that on 29 May 2022 he had just cause to terminate
the Contract because more than at least two salaries were outstanding, hence he shall be
entitled also to compensation.
23. The requests for relief of the Claimant, accordingly, were the following:.
USD 50,000 as outstanding remuneration + 5% interest per annum;
USD 356,666 as compensation for breach of contract by the Respondent/Counterclaimant + 5% interest per annum;
USD 60,000 as additional compensation for aggravating circumstances;
b. Position of the Respondent/Counter-claimant and counterclaim
24. In its reply, the Respondent/Counter-claimant rejected the claim in its entirety and argued
that the Player terminated the Contract without just cause, hence it lodged a counterclaim
for compensation.
25. In this respect, the Respondent/Counter-claimant first argued that the amounts
effectively outstanding at the time of the Player’s default letter dated 11 May 2022 were
USD 6,745 only.
26. In particular, the Respondent/Counter-claimant stated that two fines were imposed on
most of its players (including the Claimant/Counter-Respondent I), respectively of EGP
5,000 and EGP 50,000, for bad behaviour and for having refused to train on 28 March
2022 as a protest against the coach’s decision to increase the number of training sessions.
27. In this context, the Respondent/Counter-claimant remarked that at the time of signing
the Contract, the Player expressly acknowledged having agreed on the Respondent’s
regulations, which foresee inter alia that “Absence without permission imposes a fine on the
player of sum of 50,000 pounds" and that “The general supervisor of football has the right to
impose appropriate penalties on the players, unless there is a text in these regulations”.
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28. Accordingly, the Respondent/Counter-claimant held having been entitled to sanction its
players, including the Claimant/Counter-Respondent, in both the aforementioned
circumstances, whereas no objection has been moved in that regard until the Player’s
note on 24 May 2022, i.e. respectively 2 and 4 months after the mentioned sanctions had
been imposed.
29. Furthermore, the Respondent/Counter-claimant argued that the amount of EGP 75,000
(approx. USD 4,762) was paid to the Player at the moment of signing the Contract (in
addition to the amount of USD 60,000 acknowledged by the same Player with regard to
the first instalment), namely in the form of a cheque.
30. Moreover, the Respondent/Counter-claimant held that further USD 7,500 were paid to
the Mercure Hotel on behalf of the Player as accommodation expenses, namely as the
Player refused to stay at the other hotel where all his teammates were residing (i.e. ISC
Hotel) and instead accepted to pay the difference in terms of rate per months (i.e. USD
1,500 x 5 months).
31. In this context, the Respondent/Counter-claimant underlined that the Contract did not
foresee the Respondent’s obligation to cover the Player’s housing expenses, hence the
Player should have paid for his accommodation.
32. Beside the above, the Respondent/Counter-claimant argued that on top of all due
amounts, pursuant to the Egyptian law and as recalled by the Contract, a percentage of
25% had to be charged as taxes, namely as the Player’s aggregate annual income
exceeded the sum of EGP 400,000.
33. In this respect, the Respondent/Counter-claimant submitted a translated copy of the
relevant domestic tax law (Law no. 26 of 2020) which for the sake of clarity is reported
here below:
“Article 9: The tax applies to salaries and the like as follows: 1- All earnings by a taxpayer
resulting from work for third parties, with or without a contract, on a regular or irregular basis,
regardless of such dues names, forms or reasons, whether they are for works performed in
Egypt or abroad, and the consideration thereof was paid from a source in Egypt, including
wages, bonuses, incentives, commissions, grants, additional payments, allowances, dividends
or shares in profits and cash and in-kind benefits of all types; 2- All earnings by a taxpayer
from a foreign source for work performed in Egypt […]”
Article 14: "Employers and those required to pay taxable revenues, including companies and
projects established under the free zones regime, shall withhold, from the amounts paya-ble
and stipulated in article (9) of this law, an amount on account of the due tax, according to the
percentage determined by the Executive Regulation of this law.”
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34. Furthermore, the Respondent/Counter-claimant referred having sent a letter to the
Egyptian FA on 6 July 2022, namely to request confirmation of the applicable income tax
percentage and the party that should bear the relevant fiscal duties.
35. In this respect, the Respondent/Counter-claimant declared that the Egyptian FA (EFA)
replied to Ismaily’s letter on 18 July 2022, attesting that any annual remunerations during
any year after 2020 exceeding EGP 400,000 shall be subject to 25% Income Tax.
Furthermore, the EFA confirmed that each player shall bear his/her own Income Tax and
that their respective clubs shall deduct and withhold the relevant Income Tax.
36. Accordingly, the Respondent/Counter-claimant stated that as per the Contract, until the
date of the Player’s third letter dated 24 May 2022, the Player was entitled to an aggregate
net amount of USD 82,500 (USD 60,000 on 4 January 2022, USD 7,500 on 1 March 2022,
USD 7,500 on 1 April 2022, and USD 7,500 on 1 May 2022), hence the
Respondent/Counter-claimant stated that only outstanding amount to be paid to the
Player after taxes was USD 6,745 and that the latter had been invited to take the relevant
cheque within 1 May 2022, but to no avail.
37. In this respect, the Respondent/Counter-claimant was of the opinion that by virtue of his
conduct, the Player would have implicitly renounced to those financial entitlements as he
persistently refused to come to the Respondent/Counter-Claimant’s headquarters to
collect his cheque.
38. In continuation, the Respondent/Counter-claimant rebut the Player’s accusations
according to which the latter would have been detained in an office by the
Respondent/Counter-claimant without translator and being forced to sign a waiver of his
financial entitlements.
39. On the contrary, the Respondent/Counter-claimant sustained that it guaranteed the
Player a proper translator in every circumstance and that it never abused the Player’s
rights.
40. In view of all the above considerations, the Respondent/Counter-claimant accused the
Player of having terminated the Contract while only USD 6,745 were outstanding, i.e.
significantly less than 2 monthly salaries, thus breaching the Contract without any just
cause.
41. As a consequence, the Respondent/Counter-claimant lodged a counterclaim against the
Player asking compensation for the unilateral termination by the latter.
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42. In this regard, the Respondent/Counter-claimant held that the amount of compensation
shall correspond to the sum stipulated under clause six of the Contract, i.e. EUR
3,000,000.
43. As alternative, the Respondent/Counter-claimant requested that the compensation shall
amount to USD 927,500, broken down as follows:
a) the residual value of the Contract = USD 267,500 net;
b) The remaining portion of the Player’s transfer fee for the unserved term of the Contract =
USD 100,000;
c) Loss of transfer fee = USD 500,000; and
d) Specificity of Sport = USD 60,000.
44. Finally, on top of all the above sums, the Respondent/Counter-claimant requested a 5%
interest p.a. as from the date of the Contract’s termination (i.e., 29 May 2022).
c. Reply of the Player to the Counterclaim
45. In its reply to the counterclaim, the Player stated that the witness statements produced
by the Respondent/Counter-claimant in its submission were fabricated by the latter as
the Player was never guaranteed a translator when discussing his overdue payables with
Ismaily.
46. In particular with regard to the alleged receipt of a cheque amounting to EGP 75,000 at
the moment of signing the Contract, the Player acknowledged having signed a cheque
provided by the Respondent/Counter-claimant, but contextually argued that this
occurred without however the presence of his translator and that, in any case, the
relevant amount was never cashed by him as proven by the relevant bank account
statement submitted within the claim.
47. In continuation, for what concern the sanctions imposed by the Respondent/Counterclaimant, the Player argued that he was never granted the right to be heard as these were
never notified properly, hence, besides being disproportionate, the mentioned sanctions
should be annulled on the grounds that they were completely irregulars.
48. In respect to the accommodation expenses alleged by the Respondent/Counter-claimant,
the Player argued that Ismaily has never informed the Player of the existence of such debt
until the reply to the default letter dated 11 May 2022, hence in the Player’s view the
Respondent/Counter-claimant’s conduct would clearly suggest its intention of covering
the Player’s housing expenses until that moment.
49. Moreover, the Player argued that the Respondent/Counter-claimant failed to prove
having effectively paid the alleged taxes of 25% on any of the due amounts, and neither
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the hotel expenses nor the alleged fines were amounts that the Respondent should have
deduct.
50. Accordingly, the Player insisted that at the time of termination, the Respondent/Counterclaimant carried consistent debts towards the Claimant/Counter-Respondent, hence the
latter had just cause to terminate the Contract either for the number of overdue payables
as well as because of the abusive conduct held by Ismaily.
51. In this context, the Player alleged that the Respondent/Counter-claimant showed bad
faith since the beginning of the employment relationship, namely as the labor agreement
negotiated was different from the Contract that was registered at the Egyptian FA.
52. In this respect, the Player held that the parties had originally agreed on a different
duration and remuneration, both subsequently and unilaterally amended by the
Respondent/Counter-claimant.
53. As a consequence, the Player amended his initial request for reliefs, demanding a
compensation of USD 1,216,666, in line with the original duration of the agreement
between the parties (i.e., 4.5 years) as well as in consideration of the salary initially offered
by the Respondent/Counter-claimant.
54. Lastly, the Player reiterated his request for an additional compensation of USD 60,000
due to the aggravating circumstances of the termination.
d. Final comments of the Respondent/Counter-claimant
55. In its final submission, the Respondent/Counter-claimant firstly rebut the Player’s thesis
according to which the employment agreement originally offered had to be taken into
account, contextually arguing that if that was the case, the Respondent/Counter-claimant
would have amended the Player’s remuneration in order to reduce the net salaries, while
in the actual Contract the said salaries as net of taxes correspond to the amounts
stipulated in the original proposal and the Player accepted it.
56. Secondly, the Respondent/Counter-claimant argued that the unilateral extension of the
Contract was expressly agreed by the Player as outcome of several negotiations that led
to a modification of the original proposal.
57. In respect to the accusations of retaining the Player’s passport, the Respondent/Counterclaimant declared having provided the Player with a copy of the mentioned document in
order to allow him to travel anyway, and that in reality the Respondent/Counter-claimant
has never tried to prevent its players from moving abroad.
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58. Furthermore, the Respondent/Counter-claimant denied having excluded the Player from
the first team’s training sessions as from February 2022.
59. Finally, the Respondent/Counter-claimant argued that the Player was aware of the
cheque of EGP 75,000 being destined to the intermediary since the moment in which he
received such document, namely at the time of signing the Contract.
60. In conclusion, the Respondent/Counter-claimant insisted on the grounds of its original
counterclaim and repeated its request for compensation due to breach of contract by the
Player.
61. Nevertheless, in a subsidiary manner, the Respondent/Counter-claimant presented the
following requests for relief:
•
The Player shall not be entitled to any compensation; or
•
The Player shall not be entitled to any specificity of Sport; or
•
The Player shall not be entitled to the participation rate amounting to USD 87,500
based on the Player’s contribution to the termination of contract, any compensation
shall be mitigated with a percentage of 75%;
•
The total value of the Player’s contract with Always Ready SC shall be subtracted from
the residual value of the Contract. For this purpose, the Player shall be condemned to
produce his contract with Always Ready;
•
In all cases, any compensation for the Player, if any, shall be calculated based on the
net amounts rather than the gross amounts stipulated in the Contract.
e. Position of the Counter-Respondent 2
62. No reply to the counterclaim has been submitted by ARFC in spite of having been invited
to do so.
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
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took note that the present matter was presented to FIFA on 29 July 2022 and submitted
for decision on 26 January 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 a
Bolivian player and an Egyptian club.
3.
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 (October 2022 edition),
and considering that the present claim was lodged on 29 July 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
4.
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
5.
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.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the Player’s right to
terminate the employment agreement on 29 May 2022.
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7.
In particular, the Chamber noted that according to the Player, the termination of the
contract occurred with just cause, namely as a consequence of the abusive conduct held
by the Respondent/Counter-claimant as well as the significant number of overdue
payables at the time.
8.
Conversely, the Chamber observed that in the Respondent/Counter-claimant’s opinion
the outstanding sums in favour of the Player would amount to less than one salary,
whereas the conduct held by Ismaily towards the Player could not be defined as unlawful,
hence the latter had no just cause to terminate the Contract.
9.
In this context, the Chamber acknowledged that it its primary task was to verify whether
at the time of the termination there were outstanding sums in favour of the
Claimant/Counter-Respondent and in the affirmative, whether their consistency would
legitimate the Player to unilaterally terminate the employment relationship with Ismaily.
10. In this context, the Chamber first took note of the fact that pending the procedure in front
of DRC, the Player amended his request for reliefs arguing that the before registering the
Contract at the EFA, both parties had agreed on different contractual conditions, namely
on a different duration of the employment relationship and on a different remuneration
in favour of the Player, hence the latter requested that the compensation payable by
Ismaily should amount to the residual value of the original labour contract.
11. In this respect, the Chamber was of the opinion that the thesis of the Player could not be
upheld, namely because the latter did not produce any concrete evidence that the parties
had a valid and binding employment agreement alternative to the sole one submitted
and registered at the EFA, hence the Chamber acknowledged that the only source of
obligations for the parties shall remain the Contract.
12. In continuation, the Chamber turned his attention to the objections presented by the
Respondent/Counter-claimant with regard to the sums claimed by the Player as
outstanding.
13. Firstly, the Chamber observed that the Respondent/Counter-claimant operated several
deductions from the amounts claimed by the Player alleging different reasons, namely:
a) the fiscal obligation to apply the local income taxation on top of each payable
amount;
b) the imposition of sanctions by Ismaily due to the Player’s misconduct;
c) the payment of a cheque by Ismaily at the sign of the Contract which was
erroneously disregarded by the Player; and
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d) the undue payment by Ismaily of the accommodation expenses incurred by the
Player during his stay in Egypt.
14. With regard to a), the Chamber observed that the Respondent/Counter-claimant, in spite
of having obtained confirmation by the EFA of the relevant tax regime applicable to
players in Egypt, did not provide the DRC with any evidence of the fiscal retentions
effectively realized on the Player’ salary, hence in the Chamber’s view the 25% taxation
alleged by the Respondent shall be disregarded in the present case and all the amounts
claimed by the Player shall be taken into account as per their gross value.
15. In continuation, the Chamber moved its attention to the faculty alleged by the
Respondent/Counter-claimant to operate a deduction from the Player’s outstanding
sums as consequence of the imposition of two sanctions on the Player, respectively in
January and March 2022.
16. In this regard, notwithstanding the allegations by the Respondent/Counter-claimant of
the Player’s misconduct, the Chamber noted that Ismaily failed to prove having granted
the Claimant/Counter-Respondent the right to be heard with regard to both mentioned
sanctions. In particular, the Chamber observed there are no proofs that the Player
participated to the investigations conducted against him (i.e. inaudita altera parte) nor that
he was notified the imposition of such sanctions until May 2022, namely when the same
Ismaily reply to the Player’s default letter.
17. Besides, the members of the Chamber wished to remark that, as a general principle, the
imposition of a fine, or any other available financial sanction, shall not be used by clubs
as a means to set off outstanding financial obligations towards players.
18. Accordingly, the Chamber established that the sanctions imposed by the
Respondent/Counter-claimant shall be disregarded to the extent that they are not
relevant for the computation of the potential outstanding amounts in favour of the Player.
19. Thirdly, with regard to the payment of EGP 75,000 by cheque as alleged by the
Respondent/Counter-claimant in the context of the Contract’s conclusion by the parties,
the Chamber noted that (i) all remuneration indicated under the Contract was stipulated
in US Dollars, that (ii) contextually to the signature of the Contract another cheque for the
value of USD 60,000 had been paid to the Player as part of the first salary and that (iii) the
same Respondent/Counter-claimant acknowledged that the questioned cheque was
addressed to the intermediary and not to the Player.
20. Accordingly, the Chamber concluded that the mentioned payment was not meant as part
of the Player’s remuneration, hence it cannot be deducted from the outstanding amounts
claimed by the Player and shall be disregarded.
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21. Finally, with regard to the alleged undue payment by Ismaily of the accommodation
expenses incurred by the Player during his stay in Egypt, which according to the
Respondent/Counter-claimant should therefore be deducted from the Player’s income,
the Chamber observed that although these expenses were not contractually covered,
Ismaily did not claim any reimbursement until the moment in which the Player sent a
second default letter on 11 May 2022.
22. In this respect, the Chamber was of the opinion that the Respondent/Counter-claimant
tried to find a further escamotage to reduce the consistency of the overdue payables
towards the Player whereas until that moment the latter had maintained a legit
expectation that Ismaily would have covered the expenses for his accommodation,
namely for facta concludentia and in line with the doctrine of estoppel.
23. As a consequence, the Chamber decided to reject the Respondent/Counter-claimant’s
request for deduction from the Player’ salary with regard to his housing expenses in
Egypt.
24. With all the above in mind, and in the absence of further objections by the
Respondent/Counter-claimant, the Chamber assessed that at the time of terminating the
Contract on 29 May 2022, the amounts resulting outstanding in favour of the Player were
corresponding to the full salaries of February, March and April 2022 (i.e., USD 10,000 x 3)
plus a part of the salary due for January 2022 (i.e., USD 20,000), for a total of USD 50,000.
25. Furthermore, the Chamber could not ignore the evident mistreatment and abuses
realized by the Respondent/Counter-claimant against the Player, as, inter alia, expressly
condemned and witnessed by the Bolivian embassy.
26. In this context, the Chamber was of the opinion that the conduct of the
Respondent/Counter-claimant during the few months prior to the termination clearly
shows that it was not genuinely interested in continuing making use of the services of the
Player.
27. For all these reason, and taking into account the very specific circumstances of the case,
the Chamber was of the opinion that the Player terminated the contract with just cause
on 29 May 2022.
ii. Consequences
28. 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.
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29. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to the full salaries
of February, March and April 2022 (i.e. USD 10,000 x 3) plus a part of the salary due for
January 2022 (i.e. USD 20,000), for a total of USD 50,000.
30. 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., USD 50,000.
31. 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 respective due dates until
the date of effective payment.
32. 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.
33. 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.
34. In this regard, the Chamber took note of the wording of clause 6 of the contract, which
established that “(..) In the event of breaching any of these terms of the Contract, the player
shall pay three million Euros to the first party (the club) as final agreed contractual
compensation for any damage caused, opportunity missed, or any loss incurred to the club.
[…]
35. After analysing the content of the aforementioned clause, the Chamber concluded that it
did not fulfil the criteria of reciprocity and proportionality, in line with the longstanding
jurisprudence of the Football Tribunal, and therefore could not be taken into account for
establishing the amount of compensation payable to the club by the player. In particular,
the Chamber noted that the mentioned amount is clearly exaggerated if compared to the
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Player’s average salary of USD 26,666. Furthermore, the Chamber observed that the said
clause is not reciprocal as the Player would be the only one liable to pay the
aforementioned sum.
36. 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.
37. 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. Consequently, the Chamber
concluded that the amount of USD 356,666 (i.e., the residual value of the contract) serves
as the basis for the determination of the amount of compensation for breach of contract.
38. 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.
39. Indeed, the player found employment with the ARFC. In accordance with the pertinent
employment contract, the player was entitled to approximately USD 7,333 per month.
Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of USD 88,000, that is, twelve times USD 7,333.
40. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries, or sixmonthly salaries in the presence of egregious circumstances, as additional compensation
should the termination of the employment contract at stake be due to overdue payables.
In the case at hand, the Chamber confirmed that the contract termination took place,
inter alia, due to said reason i.e. overdue payables by the club, and therefore decided that
the player shall receive additional compensation.
41. Furthermore, the Chamber established that, in line with its jurisprudence, there were also
egregious circumstances in the present case, namely due to the club’s malpractice of
withholding the players’ passports as well as its attempts of coercion.
42. In this respect, the DRC decided that in principle the Player would be entitled to receive
the amount of additional compensation of USD 160,000, i.e., six times the monthly
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remuneration of the player, of account of the fact that the termination of the Contract
took place due to overdue payables and those egregious circumstances existed, in line
with art. 17 par. 1 lit. ii) of the Regulations.
43. Notwithstanding the above, the Chamber reminded the parties that, as per the last
sentence of art. 17 par. 1 lit. ii) of the Regulations, the overall compensation may never
exceed the rest value of the prematurely terminated Contract. As such, the additional
compensation awarded to the Player was capped at the amount which he mitigated.
44. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD
356,666 to the player (i.e., USD 356,666 minus USD 88,000 plus USD 88,000), which was
to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
45. 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 29 July 2022 until the date of effective payment.
iii. Compliance with monetary decisions
46. 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.
47. 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
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.
48. 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.
49. 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.
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50. 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
51. 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.
52. 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.
53. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant/Counter-Respondent 1, Carmelo Algarañaz Añez, is partially
accepted.
2. The Respondent/Counter-claimant, Ismaily SC, has to pay to the Claimant/CounterRespondent 1, the following amount(s):
USD 20,000 as outstanding remuneration plus 5% interest p.a. as from 5 January 2022
until the date of effective payment;
USD 10,000 as outstanding remuneration plus 5% interest p.a. as from 2 March 2022
until the date of effective payment;
USD 10,000 as outstanding remuneration plus 5% interest p.a. as from 2 April 2022
until the date of effective payment;
USD 10,000 as outstanding remuneration plus 5% interest p.a. as from 2 May 2022 until
the date of effective payment;
USD 356,666 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 29 July 2022 until the date of effective payment.
3. Any further claims of the Claimant/Counter-Respondent 1 are rejected.
4. The counterclaim of the Respondent/Counter-claimant is rejected.
5. Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6. 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.
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7. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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