Labour Disputes
Texto da decisão
REF. FPSD-10393
Decision of the
Dispute Resolution Chamber
passed on 29 November 2023
regarding an employment-related dispute concerning
the player Aswan SC
COMPOSITION:
Clifford J. HENDEL (USA), Deputy Chairperson
Angela COLLINS (Australia), member
Laurel VAURASI (Fiji), member
CLAIMANT I / COUNTER-RESPONDENT II:
Aswan SC, Egypt
Represented by Tamer Sami Ahmed
CLAIMANT II / COUNTER-RESPONDENT I:
Viashima Raphael Ayagwa, Nigeria
Represented by Fifpro Division Africa
INTERVENING PARTY:
Al Helal Sporting, Libya
pg. 2
REF. FPSD-10393
I. Facts of the case
1.
On 9 October 2022, the Egyptian club, Aswan SC (hereinafter: Claimant I / CounterRespondent II or club) and the Nigerian player, Viashima Raphael Ayagwa (hereinafter:
Claimant II / Counter-Respondent I or player) concluded an employment contract
(hereinafter: contract) valid for “3 years” until the end of the season 2024/2025.
2.
According to the contract, the club undertook to pay the player the following monies:
- EGP 125,000 on 30 October 2022;
- EGP 125,000 on 30 January 2023;
- EGP 125,000 on 30 April 2023;
- EGP 125,000 on 30 July 2023;
- EGP 159,500 on 30 October 2023;
- EGP 159,500 on 30 January 2024;
- EGP 159,500 on 30 April 2024;
- EGP 159,500 on 30 July 2024;
- EGP 192,500 on 30 October 2024;
- EGP 192,500 on 30 January 2025;
- EGP 192,500 on 30 April 2025
- EGP 192,500 on 30 July 2025.
3.
On 18 May 2023, the player sent an email to the club, which reads as follows:
4.
On 19 May 2023, the club sent a letter to the player requesting him to return to the club,
otherwise money would be deducted from his salary.
5.
On 22 May 2023 and 24 May 2023, the club alleged having sent further notifications to the
player.
6.
On 23 May 3034, the club imposed a fine of EGP 50,000 on the player due to the alleged
unauthorised absence.
pg. 3
REF. FPSD-10393
7.
On 26 May 2023, the player informed the club that he underwent surgery in Nigeria on 23
May 2023 and that he would return to work within 2 weeks since he needed to rest due to
the surgery.
8.
On 7 June 2023, the player returned to Egypt and resumed work.
9.
On 14 July 2023, the club played its last match of the season and got relegated. The player
played the full 90 minutes.
10. On 15 July 2023, according to the player, club officials physically assaulted him after he
refused to agree on a termination agreement waiving part of this outstanding salaries.
11. On 16 July 2023, the player took a flight from Cairo to Nigeria.
12. On 17 July 2023, the player underwent a medical examination which attested a “rib fracture
and left knee ligament injury”.
13. On 19 July 2023, the player terminated the contract with the club due to the “unacceptable
and deplorable events”. In this regard he stated in his termination notice that “just prior to
his departure for the off-season - club officials approached Mr Ayagwa in the hotel (Obelisk-Nile
hotel) pressuring him into accepting an agreement by means of which he would waive part of
his outstanding salaries. Mr Ayagwa rightly refused to accept such agreement after which the
club told him it would not allow him to leave. After Mr Ayagwa tried to leave anyway, his
belongings were confiscated, he was spit on and he was physically assaulted by several officials
of the club, which has resulted in injuries”.
14. On 26 July 2023, the player sent a letter to the club requesting to return his items.
15. On 30 July 2023, the club replied to the player denying that there was any assault and
reminding the player about he is “contracted” until 2025.
16. On 1 August 2023, the player signed an employment contract with the Libyan club Al Helal
Sporting, valid as from 1 August 2023 until 31 July 2024, including a total salary of USD
100,000 (approx. EGP 3,000,000), payable as follows:
- USD 40,000 after the medical
- USD 6,000 as monthly salary payable between 31 August 2023 and 31 May 2024 (10x).
pg. 4
REF. FPSD-10393
II. Proceedings before FIFA
17. On 30 May 2023, the club filed the claim at hand before FIFA, and on 7 August 2023 (before
he could be notified of the claim lodged against him), the player filed his claim before FIFA.
A brief summary of the positions of the parties is detailed in continuation.
a. Position of Aswan SC
18. Aswan SC requested payment of EGP 1,908,000 as compensation for breach of contract.
19. In its claim, the club argued that the player left the club without authorisation and without
giving any reason on 19 May 2023.
20. The club held that it fulfilled its financial obligations (by paying the total amount of EGP
335,000) as well as housing and transportation.
21. In this framework, the club held that every day of absence shall result in a fine of EGP 1,000.
22. The club confirmed having received the notice of the player on 26 May 2023, whereby he
explains his absence with the surgery. However, the club argued that the player got
married on the same day and that this was the real reason for his absence.
b. Position of the player
23. The player requested payment of the following monies:
- EGP 125,000 as outstanding salaries, plus 5% interest p.a. as of 1 May 2023;
- USD 3,110 + NGN 5,000 + AOA 2,000 and GHC 50 as reimbursement for the
foreign currencies “confiscated” by the club, plus 5% interest p.a. as of 19 July 2023;
- USD 799 as costs for a new iPhone 11, plus 5% interest p.a. as of 19 July 2023;
- USD 1,500 as “reimbursement for the value of the material confiscated”, plus 5%
interest p.a. as of 19 July 2023;
- EGP 2,169,000 as compensation for breach of contract (residual value), plus 5%
interest p.a. as of 19 July 2023;
- EGP 1,553,000 as moral damages, plus 5% interest p.a. as of 19 July 2023.
24. In his claim, the player argued having had just cause to terminate the contract due to the
events on 15 July 2023, when his “belongings are confiscated, when he is being harassed and
when he is physically assaulted by club officials”.
25. According to the player, he could not be expected to continue the contractual relationship
after the events of 15 July 2023 and therefore he had just cause to terminate the contract.
pg. 5
REF. FPSD-10393
26. In this regard, the player stated that the following events took place after the last match of
the season on the way back to Cairo, where the players lived and trained:
pg. 6
REF. FPSD-10393
c. Reply of the club to the player’s claim
27. In its reply to the player’s claim, the club reiterated its position, rejected the position of the
player and amended its claim, requesting payment of USD 100,000 as compensation “for
defaming the club’s reputation”, plus 5% interest p.a..
28. The club pointed out again that it fulfilled all of its obligation and that the player had no
authorisation to leave.
29. Further, the club argued that it offered a bank cheque of EGP 131,000 on 30 April 2023,
which was refused by the player.
30. Moreover, the club denied the player’s allegations of assault stating that it was an
“imaginary story”. It pointed out that the video only shows that the car brought him to the
airport.
31. On account of the above, the club held that “he didn’t have a legal cause” to leave the club
and that the contract is still valid.
d. Reply of the player to the club’s claim
32. The player reiterated his position and rejected the club’s claim.
33. He denied having received the total amount of EGP 335,000 during the contract, but only
EGP 250,000.
34. The player further insisted that he did not leave the club without notification on 19 May
2023, but only after months of struggling with a medical problem which was ignored by the
club. He pointed out that due to the club’s lack of interest and care he was forced to get
treatment in Nigeria.
35. On account of the above, the player argued that his absence between 19 May 2023 and 7
June 2023 was absolutely justified and that the club was duly informed.
36. Moreover, the player maintained that the club could not request the performance of a
contract if the club itself is in default of its own obligations, i.e. the outstanding
remuneration of EGP 125,000.
37. Additionally, the player denied having received the notices of the club dated 19 May 2023,
22 May 2023 and 24 May 2023 as it appears unclear how they were allegedly sent.
pg. 7
REF. FPSD-10393
38. He further held that upon return on 7 June 2023, he was never informed about any
disciplinary proceeding and he was never invited to give his position.
39. Therefore, the club confirmed through its actions that the “employment relationship
continued regularly”. He held that he was reinstated in the team for 3 matches (29 June
2023, 10 July 2023 and 14 July 2023), which clearly shows that the contractual relationship
was still intact.
40. The player rejects any “fine” allegedly imposed and requested not take such “deductions”
into account. He held that he refused to receive a cheque that did not cover his full
outstanding dues.
e. Position of Al Helal Sporting
41. The player’s new club endorsed the player’s position, rejected the claim of Aswan SC and
pointed out that it was not in contact with the player during the period of his contractual
relationship with Aswan SC.
pg. 8
REF. FPSD-10393
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
42. 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 30 May 2023 and submitted
for decision on 29 November 2023. 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.
43. 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 (May 2023 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.
44. 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 30 May 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
45. 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
46. 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.
pg. 9
REF. FPSD-10393
i. Main legal discussion and considerations
47. 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 circumstances and
consequences of the contract termination.
48. In this context, the Chamber acknowledged that it its task was to decide if the player had
indeed just cause to terminate the contract or not, and to decide on the consequences
thereof.
49. The members of the Chamber duly noted that this matter concerns a claim of a club against
a player and a parallel claim of the player against the club.
50. Subsequently, the Chamber noted the player’s argumentation that his absence between
19 May 2023 and 7 June 2023 was duly notified and justified due to medical reasons. Upon
return to the club, he was part of the squad for three more matches before he was
physically assaulted by club officials after he refused to agree on a termination agreement
waiving part of this outstanding salaries (on 15 July 2023). As a consequence, he terminated
the contract with the club on 19 July 2023, while the amount of EGP 125,000 (due on 30
April 2023) remained outstanding.
51. The DRC further noted that the club held that the player was absent without authorisation
and that it fulfilled its financial obligations towards the player. The club held that it was not
informed about the player’s absence and that he was fined in accordance with its
disciplinary regulations.
52. In order to decide if the player had just cause to terminate the contract on 19 July 2023 or
if he eventually already terminated the contract when he left on 19 May 2023, the Chamber
started to analyse the following points:
a) The absence between 19 May 2023 and 7 June 2023:
The Chamber noted that the player appears to have informed the club about his travel
plans in an email dated 18 May 2023. He referred to the club’s inactive stance to support
him with his medical issue and as a last resort, he decided to get medical treatment in
Nigeria, which is confirmed by a medical report.
On account of the above, the DRC decided to reject the club’s argument. Even without a
formal authorisation on file, it appears that the club was informed about the absence
and, that the player would return on 7 June 2023 and therefore intends to honor his
contract.
Therefore, since the club did not terminate the contract at this point and the player
clearly intended to honor the contract, no termination took place at this stage. The
Chamber wished to point out that the player evidently returned to the club and featured
pg. 10
REF. FPSD-10393
in 3 more matches for the club.
b) The alleged duress on 15 July 2023:
Taking into account the documentation on file, the Chamber took note of the player’s
allegations regarding the events allegedly occurred on 15 July 2023, which are supported
by circumstantial evidence (audio messages, WhatsApp messages and videos). The club
simply denies any wrongdoing and does not give any further explanation. The members
noted that there is a medical report on file that concludes that the player had a rib
fracture and a knee injury. The members of the Chamber pointed out that the club had
a contractual obligation to organise the medical treatment of the player.
c) The outstanding remuneration on 19 July 2023:
The DRC noted that the player held that he received the total amount of EGP 250,000
during the contractual relationship and therefore that the amount of EGP 125,000 (due
date 30 April 2023) remained outstanding.
The club held that it “fulfilled all of its obligations” and that it offered a cheque which was
rejected by the player. The members wished to emphasize that such allegation is not
corroborated by any evidence.
The DRC held that the player alleged not being aware of any fine imposed and the
Chamber noted that no disciplinary decision itself is file. This being said, the members
of the Chamber wished to emphasize that there is no indication that due process was
respected when allegedly imposing such fine. Therefore, the DRC concluded to
disregard the fine and concluded that the amount of EGP 125,000 remained
outstanding.
53. Regarding the outstanding remuneration in the total amount of EGP 125,000, the DRC
established that such amount corresponds to 3 monthly salaries taking into account that
the player’s yearly remuneration for the season in question amounts to EGP 500,000.
54. It has to be noted that in the case at hand the club bore the burden of proving that it indeed
complied with the financial terms of the contract concluded between the parties.
Nonetheless, the club failed to do so in the matter at hand.
55. Consequently, on account of the above, considering that the club had thus repeatedly and
for a significant period of time been in breach of its contractual obligations towards the
player, and since there is circumstantial evidence of duress regarding the events dated 15
July 2023, the DRC decided that the player had just cause to unilaterally terminate the
employment contract on 19 July 2023 and that, as a result, the club is to be held liable for
the early termination of the employment contact with just cause by the player.
56. On account of the above, the DRC decided to reject the club’s claim for compensation.
pg. 11
REF. FPSD-10393
ii. Consequences
57. 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 club.
58. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player amounts to EGP 125,000, as
established above.
59. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the club is liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, i.e. EGP 125,000.
60. In addition, 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 at the rate of
5% p.a. on the outstanding amounts as from 1 May 2023 until the date of effective payment.
61. 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.
62. 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.
63. 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.
pg. 12
REF. FPSD-10393
64. 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 EGP 1,533,000 (i.e. EGP 125,000 from 2022/2023+EGP
638,000 from 2023/2024+EGP 770,000 from 2024/2025)) serves as the basis for the
determination of the amount of compensation for breach of contract.
65. 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.
66. Indeed, the player found employment with Al Helal Sporting. In accordance with the
pertinent employment contract, the player was entitled to approximately EGP 3,000,000 as
total amount of the new contract between August 2023 and July 2024. Therefore, the
Chamber concluded that the player fully mitigated his damages between August 2023 and
July 2024.
67. However, the DRC pointed out that the player remains entitled to the compensation of EGP
125,000 for 2022/2023 as well as EGP 770,000 for 2024/2025. This amounts to a mitigated
compensation of EGP 895,000.
68. 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 EGP 895,000, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
69. 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 2023 until the date of effective payment.
70. In continuation, the Chamber took note of the player’s request to be awarded EGP
1,553,000 as moral damages. In this regard, the Chamber first of all wished to recall that in
accordance with its well-established jurisprudence, the DRC is rather reluctant in awarding
moral damages. In absence of any proof in this respect, a party is in general not entitled to
the payment of any compensation for moral damages.
71. However, the Chamber noted that the player was physically assaulted by the club, which is
documented by a medical report. The Chamber is of the opinion that the club failed to
explain the circumstances of the events on 15 July 2023 and therefore it is the Chamber’s
opinion that the player’s allegations are to be followed.
pg. 13
REF. FPSD-10393
72. With the above in mind and taking into account the medical documentation submitted by
the Claimant confirming his injuries, the Chamber found that the club’s conduct in this case
had been both exceptional and severe, and that the player should exceptionally be
awarded an amount to reflect the injuries and trauma caused by the Respondent.
73. Given the extraordinary circumstances of this case, the Chamber decided – on an
exceptional basis and considering the rather specific circumstances in the matter at hand
- to award the player moral damages in the amount of EGP 250,000, i.e. equivalent to six
monthly salaries, which was considered by the DRC to be a reasonable and justified
amount.
iii. Sporting Sanctions
74. 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.
75. 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”.
76. In this respect, the Chamber took note that the player was born on 13 February 1998 and
the relevant contract with the club was concluded on 9 October 2022. Furthermore, the
Chamber noted that the player terminated the contract with just cause on 19 July 2023.
The breach of contract by the club had therefore occurred within the protected period.
77. 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. 14
REF. FPSD-10393
d. Costs
78. 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.
79. 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.
80. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 15
REF. FPSD-10393
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant I / Counter-Respondent II, Aswan SC, is rejected.
2.
The claim of the Claimant II / Counter-Respondent I, Viashima Raphael Ayagwa, is partially
accepted.
3.
The Claimant I / Counter-Respondent II must pay to the Claimant II / Counter-Respondent
I, the following amount(s):
- EGP 125,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2023
until the date of effective payment;
- EGP 895,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 19 July 2023 until the date of effective payment;
- EGP 250,000 as moral damages.
4.
Any further claims of the Claimant II / Counter-Respondent I are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form within 30 days of the notification of this
decision.
6.
If the aforementioned sums plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and formal decision.
7.
The Claimant I / Counter-Respondent II, Aswan SC, shall be banned from registering any
new players, either nationally or internationally, for the two next entire and consecutive
registration periods following the notification of the present decision.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 16
REF. FPSD-10393
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 17