Labour Disputes
Texto da decisão
REF FPSD-3812
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Saifeldin
Malik Bakhit Maki
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
AWAD AL-THEBITY Khalid (Saudi Arabia), member
SARTORI Stefano (Italy), member
CLAIMANT:
Al Merrikh Sport Club, Sudan
RESPONDENT 1:
Saifeldin Malik Bakhit Maki, Sudan
Represented by Nehad Hagag
RESPONDENT 2:
Pharco SC, Egypt
Represented by Nehad Hagag
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REF FPSD-3812
I.
Facts of the case
1.
In June 2018, the Sudanese player Saifeldin Malik (hereinafter: the Player or the First
Respondent) and the Sudanese club Al Merreikh (hereinafter: the Claimant or Merrikh) signed
an employment contract valid until 10 June 2021.
2.
On 11 April 2021, the Claimant and the Player signed a new contract with valid from June
2021 until June 2024 (hereinafter: the Contract).
3.
Art. 10 of the Contract reads inter alia as follows:
“4. If the Club terminates this Contract without having just cause, the Club shall pay to the
Player compensation equal to the total amount of USD 50,000
5. If the Player terminates the Contract without having just cause, the Player shall pay to the
Club compensation equal to the total amount of USD 500,000.
6. The Parties expressly agree that the compensation amounts stipulated under the provisions
of paragraphs 4 and 5 of this Article 10 above are fair and respect the principles of parity and
reciprocity of the Parties in light of the overall circumstances related to the Contract's
conclusion and execution.”
4.
Schedule 1 of the Contract reads inter alia as follows:
“The Contract has a total value of: USD 250,000
The Player shall receive from the Club the total amounts as follow:
Signing on fee USD 250,000 to be paid upon signing this contract
Monthly salary Sudanese Pounds (“SDG”) 100,000”
5.
On 1 September 2021, the Player and the Egyptian club Pharco SC (hereinafter: Pharco or the
Second Respondent) entered into an employment contract valid until the “end of season
2023/2024” (hereinafter: the Pharco Agreement).
6.
Clause 2 of the Pharco Agreement reads inter alia as follows:
“The two parties agreed on value of the contract gross amount of USD 1,150,000 to be
distributed as followsFirst season value 2021/2022 an amount of USD 350,000
Second season value 2022/2023 an amount of USD 400,000
Third season value 20/20 (Note: not completed in the original) an amount of USD 400,000”
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7.
In June 2021, the Player was injured in the match between the Sudanese national team and
the Libyan national team.
8.
In July 2021, the Player travelled to Egypt for treatment and completed the rehabilitation
program.
9.
On 2 September 2021, the Transfer Matching System (TMS) manager of the Sudanese
Football Association (SFA) informed Merrikh that Pharco had requested the Player’s
International Transfer Certificate (ITC).
10. On the same day, Merrikh informed the SFA that the Player was under contract.
11. On 7 September 2021, the SFA accepted the ITC request of the player and delivered the ITC
of the player to the Egyptian Football Association (EFA).
12. On 23 September 2021, an unknown person filed a complaint against the Player before the
Public Prosecution in Sudan accusing the Player of having received from his agent the amount
of USD 350,000 in exchange for registering for Merrikh for a period of three years, and that
the player had received the amount but did not sign for Merrikh.
13. On 20 October 2021, Merrikh contacted the president of Pharco on the following terms:
“The Board of Directors, after greetings, would like to alert you that we as the elected Council
of Al-Merreikh Club headed by Mr. Adam Abdullah Adam that we did not authorize or
delegate any group to speak on behalf of Al-Merreikh Club regarding the player Saif Al-Din
Malik, and we inform you that the group headed by Hazem Mustafa is illegal and not a Party
to solve the existing problem. And such letter is an alert for your excellency so that you do
not fall victim to dealing with an illegal Party. We refer that this email address sent to you
from is the official email of the Club and that we have submitted a complaint to FIFA and any
discussion about the aforementioned issue is with the legitimate administration but not the
group which is trying to communicate with you now.”
II. Proceedings before FIFA
14. On 28 September 2021, 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
15. According to Merrikh, on 11 April 2021, upon signature of the Contract, the Player received
“his total value of the contract”.
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16. Merrikh argues that on 1 September 2021, it learned from the media that the Player had
travelled to Egypt to sign a contract with Pharco.
17. Merrikh states that:
-
“the Contract between the claimant and the Player has not expired
No mutual agreement has been reached for early termination of the Contract.
It has fulfilled its obligations
The player has signed a second contract Pharco during the football season in Sudan”.
18. Hence, Merrikh argues that the Player did not respect the Contract violating art. 13 of the
Regulations for the Status and Transfer of Player (RSTP) and art. 16 RSTP. Merrikh further
states that the Player has breached the Contract unilaterally and without just cause during
the protected period.
19. Merrikh deems that Pharco shall be found to have induced the Player to breach the Contract
during the protected period.
20. Merrikh filed the following requests for relief:
“we request that:
a. The Player shall pay to the Claimant compensation equal to total amount of USD 1,500,000
b. sporting sanctions shall be imposed on the player
As the Pharco found to be induced the Player to breach his contract with the Claimant during
the protected period and in accordance to art. 17.2-17.4 RSTP.
we request that:
a. Sporting sanctions shaII be imposed on Pharco.
b. The second respondent and the first respondent shall be jointly and severally liable for the
compensation payment”.
b. Position of the Respondents
21. The Respondents were represented by the same counsel and filed a joint response which is
summarised as follows.
22. According to the Respondents, “the transfer process is 100% legal. The transfer is impeccable
and does not has any legal flaw, which clearly confirms the correctness of the legal situation
of the Pharco Sports Club and the player”.
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23. Pharco states that it did not contract the Player until after it confirmed the expiry of the
Contract on 10 June 2021.
24. In support of this, the Respondents state that the SFA sent “the player’s international transfer
card to the EFA in preparation for his enrolment in the Pharco, as there is no contractual
dispute or any other legal impediment.”
25. Furthermore, the Player “confirms the invalidity of the contract dated 11/4//2021 and the
invalidity of any legal effects that make the player or Pharco bear any financial obligations or
any other penalties due to the validity of the legal situation of the player and Pharco”.
26. The Player also denies having received USD 250,000 from the Claimant.
27. The Respondents summarise their position as follows:
a) Pharco has taken the legal paths and taken all necessary legal measures to enrol the Player
in its list after the expiry of the Player’s contract with Al Merrikh on 10 June 2021, in a free
transfer deal.
b) The nullity of the player’s contract is an absolute nullity for not following the terms,
conditions and controls stipulated in Article No. 42 of the Regulations on the Status and
Transfers of Players in the Sudanese Federation.
c) The invalidity of the Contract since it was not documented, approved or even registered by
the SFA and therefore does not entail any legal consequences, and therefore its nonapplicability against the player and Pharco and the contract shall be deemed void.
d) The nullity of any legal measures taken against the player before the Public Prosecution or
the Sudanese judiciary for violating the statutes of the FIFA, as well as the Regulations on the
Status and Transfers of Players in the Sudanese Federation, as mentioned above.
28. The Respondents request for relief is the following:
“We request, and after reviewing the foregoing and the attached documents, to judge with
rejecting the case in form and merits, while obligating Al-Merreikh Club with all the fees and
expenses prescribed for that.”
c. Replica of the Claimant
29. Merrikh reiterates that the Player has signed a second contract on 1 September 2021 with
Pharco when a valid and binding contract with Merrikh for a period of three years was in
place.
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30. Merrikh further states that all necessary legal measures and paths taken by Pharco to enrol
the Player do not deny the fact that the Player has a second contract with Merrikh and for
the same period.
31. As for the registration of the Contract, Merrikh states that the Player was initially signed from
the Sudanese club Khartoum in June 2018 and at that time the transfer and registering of
the national players was done out Domestic TMS (DTMS).
32. Merrikh further states that when we they agreed with a professional player to renew his
contract, this renewed contract will be uploaded on DTMS. However, Merrikh states that due
to the sanctions imposed on the club by the SFA, it is not allowed to register any “new”
player and for this reason, it could not upload the Contract on the DTMS
33. Merrikh underlines that “if the player free of contract and the contract is not valid as
respondents said, why did the Merrikh paid all the expenses and costs of his treatment trip in
Cairo after June 2020?”
34. Regarding the procedures initiated against the Player in the national courts, Merrikh states
that it “want to clarify that this issue has nothing to do with the Al Merrikh, and that whoever
carried out its procedures does not have any official status in the club”.
35. Merrikh further adduces that “according to our knowledge [the person who initiated this
proceeding] is a fan of the club and the player and he did it on his own and from his own
money to motivate the player and this procedure was done. After the player signed his
contract with Al Merrikh on 11 April 2021 and received the agreed amount of the contract
from the Club meaning that the amount received by the player from the club in accordance
with the club’s regulations is USD 250,000 as proven by you while there is different amount
related to this case which is an amount of USD 350,000 paid by Mr. Hisham Taj Al-Sir (a fan
of the club) so the player received the sum of USD 600,000”.
36. For the above, Merrikh reiterates that:
-
“The player enters in two contracts in the same periods with different Clubs.
The player's contract with AI-Merrikh Club signed on April 11, 2021 is considered a
legally valid and binding contract for the player.
Pharco inducing breach of contract of the player with Al Merrikh during the protected
period.”
37. Merrikh concludes that “According to above mentioned, we believe that the allegations
submitted, and issues raised by the RESPONDENTS must be rejected and not taken into
consideration”.
d. Duplica of the Respondents
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38. The Respondents state that “there is a conflict over the presidency of Al-Merrikh Club
between two warring fronts over administrating the affairs of Al-Merrikh Club, and this
confirms what we have previously concluded to question all the documents submitted by AlMerrikh Club regarding the existing conflict, and therefore all documents submitted by AlMerrikh Club shall be investigated and examined to indicate its validity or not”.
39. The Player “confirms the invalidity of the contract dated 11 April 2021 and the invalidity of
any legal effects that make the player or Pharco bear any financial obligations or any other
penalties”.
40. In support of the above, the Respondents states that the Contract is invalid due to violating
the provisions of Article 42 of the Regulations on the Status and Transfers of Players in the
Sudanese Football Association.
41. The Respondent further states that “by applying the provisions of this article on the existing
dispute, it becomes clear that the claim filed by Al-Merrikh Club against the player and the
Pharco Sports Club was devoid of any document indicating the approval of the Players’ Status
Committee on this contract before signing, which confirms the invalidity of the contract and
the absence of all its legal effects in accordance with the provisions of Article No. (2 / 42)”
42. Pharco underlines that:
-
“it has taken the legal paths and taken all necessary legal measures to enrol the player
in its list after the expiry of the player’s contract with Al Merrikh on 10 June 2021, in a
free transfer deal.
-
The nullity of the player’s contract is an absolute nullity for not following the terms,
conditions and controls stipulated in Article 42 of the Regulations on the Status and
Transfers of Players in the Sudanese Federation.
-
The invalidity of the player’s contract with Al Merrikh especially since this contract was
not documented, approved or even registered by the SFA and therefore does not entail
any legal consequences for the absence of the contract and its invalidity, and therefore
its non-applicability against the player and Pharco and the contract shall be deemed
void.”
43. Moreover, the Respondents state that “The nullity of any legal measures taken against the
player before the Public Prosecution or the Sudanese judiciary for violating the statutes of the
International Football Association, as well as the Regulations on the Status and Transfers of
Players in the Sudanese Federation”.
44. The Respondents conclude stating that “We request, and after reviewing the foregoing and
the attached documents, to judge with rejecting the case in form and merits, while obligating
Al-Merreikh Club with all the fees and expenses prescribed for that”.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
45. 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 September 2021 and submitted for
decision on 16 February 2022. Taking into account the wording of art. 34 of the October
2021 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.
46. 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. a) and b)
of the Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns a dispute
between clubs and a player in relation to the maintenance of contractual stability where there
has been an ITC request and a claim from an interested party in relation to said ITC request,
in particular regarding the issue of the ITC, sporting sanctions or compensation for breach of
contract. The DRC further outlined that the claim is employment-related and has an
international dimension insofar as it involves a Sudanese player, a Sudanese club and an
Egyptian club.
47. 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 (August 2021 edition), and
considering that the present claim was lodged on 28 September 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
48. 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
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49. 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
50. 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 validity of the Contract.
51. In this context, the Chamber acknowledged that it its task was to ascertain whether the
Contract was valid and if the Contract was breached by any party, and the consequences
thereof.
52. In this regard, the Chamber observed that based on the evidence on file, it appears to be
undisputed that the Player and Merrikh signed the Contract and that the allegations of the
Player and Pharco are aimed against the validity of the said agreement.
53. The Chamber recalled that in order for an employment contract to be considered as valid and
binding, apart from the signature of both the employer and the employee, it should contain
the essentialia negotii of an employment contract, such as (but not limited to) the parties to
the contract and their role, the duration of the employment relationship and the
remuneration agreed upon between the parties. After a careful study of the copy of the
Contract presented by the Claimant, the members of the Chamber concluded that all such
essential elements are included in the pertinent document, in particular, the fact that the
Contract establishes that the player is entitled to receive remuneration in exchange for his
services to Merrikh as a football player.
54. The Respondents adduce that the Contract shall be deemed null and void due to “not
following the terms, conditions and controls stipulated in Article No. 42 of the Regulations
on the Status and Transfers of Players in the Sudanese Federation”.
55. The Chamber referred itself to the said article which reads as follows:
“1- The contract between the club and the professional player is concluded according to the
contract form prepared by the Players Status Committee of the Sudanese Football Association.
2- In the event that the club and the player wish to sign another separate or additional
contract the approval of the Players' Status Committee on this contract shall be obtained
before signing it, otherwise it will be considered void.
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3- Four (4) original copies of the contract between the club and the player shall be issued,
one copy for each party, and the remaining copies shall be deposited at the Committee.
4- All professional player contracts shall be approved and documented by the committee.
5- In accordance with the concluded contract, the club shall keep a record of all the player's
financial entitlements in the club's ledger.”
56. The Chamber then recalled its longstanding jurisprudence, according to which the validity of
an employment contract cannot be made subject to administrative formalities, such as, in
casu, the registration of the Player. As such, the Chamber was firm to set aside the
argumentation of the Respondents.
57. Furthermore, the Chamber observed the conduct of the parties based on the evidence
available and noted that Merrikh had provided proof that it paid the costs of the Player’s
flights to Egypt for his rehabilitation, while the Respondents challenged this argument. At the
same time, the Player had not complained against the alleged lack of registration (or any
other motive or breach) that Merrikh could have committed.
58. In line with the above, the Chamber underlined that this allegation of invalidity has only been
raised after the signature of the Pharco Agreement and that the Player did not put Merrikh
in default for this alleged invalidity after the signature the Contract or at any other point in
time before or after the signature of the Pharco Agreement. According to the evidence
available, the Chamber observed that the first allegation against the invalidity of the Contract
comes with the reply to the claim lodged by Merrikh.
59. Furthermore, the Chamber underscored that whilst the Respondents adduced having
followed a due procedure when signing the Player, they failed to present which specific
procedures or precautions (if any) did they undertake in order to confirm that the Player was
out of contract before signing the Pharco Agreement.
60. Hence, the DRC was not convinced by the arguments submitted by the Respondents and thus
it confirmed the Respondents had not met the standard of proof required to demonstrate the
invalidity of the Contract.
61. As a consequence of the foregoing, the DRC deemed by majority that the Contract was valid
and binding on Merrikh and the Player and thus fully enforceable.
62. Taking into account all the foregoing, the members of the DRC confirmed that, based on the
previous determinations, it was clear that the Player had signed two employment contracts
with two different clubs for the same or overlapping period of time, which is considered to
be a breach of art. 18 par. 5 of the Regulations.
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63. Hence, the DRC confirmed that by signing the Pharco Agreement, the Player had breached
the Contract without just cause and art. 18 par. 5 of the Regulations; and shall therefore bear
the financial and sporting consequences of his unjustified breach.
ii. Consequences
64. 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 Player during
the protected period.
65. The Chamber turned to the calculation of the amount of compensation payable to the
Claimant by the Player 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.
66. 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 Clause
10 of the Contract appeared to contain a compensation clause on the following terms:
“4. If the Club terminates this Contract without having just cause, the Club shall pay to the
Player compensation equal to the total amount of USD 50,000.
5. If the Player terminates the Contract without having just cause, the Player shall pay to the
Club compensation equal to the total amount of USD 500,000.
6. The Parties expressly agree that the compensation amounts stipulated under the provisions
of paragraphs 4 and 5 of this Article 10 above are fair and respect the principles of parity and
reciprocity of the Parties in light of the overall circumstances related to the Contract's
conclusion and execution.”
67. As per the terms of the aforementioned clause, the Chamber acknowledged that the parties
had agreed different compensations depending on who was the party in breach. On the one
hand, Merrikh would receive no less than USD 500,000 if the player were to terminate the
Contract without just cause. On the other hand, the Player’s maximum compensation in the
event of breach of contract without just cause by Merrikh is set out at USD 50,000. Therefore,
the clause appeared not to comply with the pre-requisite of reciprocity.
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68. Based on the aforementioned considerations, the Chamber concluded that such
compensation clause was not applicable in the present matter as it does not comply with the
pre-requisites of proportionality and reciprocity.
69. As a consequence, the Chamber determined that the amount of compensation payable in
the case at stake 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be taken into
account at the discretion of the deciding body. In this regard, the Chamber stated beforehand
that each request for compensation for contractual breach has to be assessed by the Chamber
on a case-by-case basis taking into account all specific circumstances of the respective matter.
70. In order to estimate the amount of compensation due to Merrikh in the present case, the
Chamber first turned its attention to the financial terms of the Contract and the Pharco
Agreement, the value of which constitute an essential criterion in the calculation of the
amount of compensation in accordance with art. 17 par. 1 of the Regulations. The Chamber
deemed it important to emphasise that the relevant compensation should be calculated based
on the average fixed remuneration, i.e. excluding any conditional or performance related
payment, agreed by the Player with his former club and his new club, as well as considering
the period of time remaining on the contract signed between the Player and Merrikh.
71. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the fixed
remuneration payable to the player under the terms of both contracts, for the period between
1 July 2021 and 30 June 2024 (i.e. 48 months). In this particular, and only for the purposes
of these calculations, the Chamber stated that it would (fictionally) extend the Pharco
Agreement in order for both to have the same end date. For the sake of completeness, the
Chamber wished to clarify that in order to properly calculate the amounts due under both
contracts, in accordance with the jurisprudence of the DRC, it was necessary to consider the
amounts due to the player under the Pharco Agreement for the same period of time
remaining in the Contract, i.e. from 1 July 2021 until 30 June 2024.
72. In this regard, the Chamber noted that, as per the Contract, the player was entitled to his
remuneration for the whole duration of the contract (SDG 100,000*36 months = SDG
3,600,000), approximately equivalent to USD 8,151, and to a signing on fee of USD 250,000.
Thus, the total value was calculated at USD 258,151.
73. In continuation, the Chamber noted that as per the Pharco Agreement, the Player was entitled
to the total amount as stated in its Clause 2, which was USD 1,150,000.
74. Taking into account the above, the Chamber concluded that, for the relevant period, the
player’s average remuneration amounts to USD 704,075.
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75. Furthermore, with regard to the criterion relating to the fees and expenses allegedly paid by
the Claimant for the acquisition of the player’s services, the Chamber took due note that
Merrikh did not provide evidence of having paid any transfer fee to another club in order to
secure the transfer of the player or to having incurred in any other expenses. Thus, no amount
should be considered for amortisation for this concept.
76. Notwithstanding the above, the Chamber underlined that as per art. 10 of the Contract, the
Claimant and the First Respondent had already anticipated the maximum amount that a
serious breach of contract by the Player, as the one at hand, would entail. Hence, on the basis
of the particular constellation of the case at hand together with the principle of the specificity
of sport, the Chamber decided that the aforementioned amount should be reduced to USD
500,000, which shall be considered an amount fair and reasonable considering all the
circumstances of the case.
77. Considering the Claimant’s request and the constant practice of the Chamber decided to
award 5% interest per annum over the aforementioned amount as from the date of claim,
i.e. 28 September 2021.
78. In continuation, the Chamber turned its attention to art. 17 par. 1 of the Regulations,
according to which the player is liable to pay compensation to Merrikh. Furthermore, pursuant
to the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established
that the player’s new club, i.e. Pharco, shall be jointly and severally liable for the payment of
compensation. In this respect, the Chamber was eager to point out that the joint liability of
the player’s new club is independent from the question as to whether the new club has
committed an inducement to contractual breach or any other kind of involvement by the new
club. This conclusion is in line with the jurisprudence of the DRC, which has been repeatedly
confirmed by the Court of Arbitration for Sport (CAS). Notwithstanding, the Chamber
recalled that in accordance with art. 17 par. 2 of the Regulations, it should be assumed that,
unless otherwise proven, any club that signs a contract with a professional player who has
terminated his/her contract without just cause has induced the player to terminate such
contract. The DRC lastly confirmed that the Second Respondent had failed to advance any
evidence to rebut the cited presumption and thus confirmed that Pharco is jointly and
severally liable for payment of the cited compensation.
iii. Sporting sanctions
79. In continuation, the Chamber focused its attention on the further consequences of the breach
of contract in question and, in this respect, it addressed the question of sporting sanctions
against the player in accordance with art. 17 par. 3 of the Regulations. The cited provision
stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall be
imposed on any player found to be in breach of contract during the protected period.
80. 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
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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”. In this regard, the DRC
pointed out that independent of the player’s age, the breach occurred before the contract
had run for 2 entire seasons or 2 years, entailing that the unilateral termination of the contract
occurred within the protected period.
81. With regard to art. 17 par. 3 of the Regulations, the Chamber emphasised that a suspension
of four months on a player’s eligibility to participate in official matches is the minimum
sporting sanction that can be imposed for breach of contract during the protected period.
This sanction, according to the explicit wording of the relevant provision, can be extended in
case of aggravating circumstances. In other words, the Regulations intend to guarantee a
restriction on the player’s eligibility of four months as the minimum sanction. Therefore, the
relevant provision does not provide for a possibility to the deciding body to reduce the
sanction under the fixed minimum duration in case of mitigating circumstances.
82. Consequently, taking into account the circumstances surrounding the present matter, the
Chamber decided that, by virtue of art. 17 par. 3 of the Regulations, the player had to be
sanctioned with a restriction of four months on his eligibility to participate in official matches.
83. Finally, the Chamber turned its attention to the question of whether, in view of art. 17 par.
4 of the Regulations, the player’s new club, i.e. Pharco, must be considered to have induced
the Player to unilaterally terminate his contract with the Claimant without just cause during
the protected period, and therefore shall be banned from registering any new players, either
nationally or internationally, for two entire and consecutive registration periods.
84. In this respect, the Chamber recalled that, in accordance with art. 17 par. 4 of the
Regulations, it shall be presumed, unless established to the contrary, that any club signing a
professional player who has terminated his previous contract without just cause has induced
that professional to commit a breach. Consequently, the Chamber pointed out that the party
that is presumed to have induced the player to commit a breach carries the burden of proof
to demonstrate the contrary.
85. In light of the aforementioned and the evidence of file, the DRC had no option other than to
conclude that Pharco had not been able to reverse the presumption contained in art. 17 par.
4 of the Regulations. Accordingly, the Chamber decided that Pharco had induced the player
to unilaterally terminate his employment contract with the Claimant.
86. In view of the above, the Chamber decided that in accordance with art. 17 par. 4 of the
Regulations, Pharco shall be banned from registering any new players, either nationally or
internationally, for the two entire and consecutive registration periods following the
notification of the present decision. Pharco shall be able to register new players, either
nationally or internationally, only as of the next registration period following the complete
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serving of the relevant sporting sanction. In particular, it may not make use of the exception
and the provisional measures stipulated in art. 6 par. 1 of the Regulations in order to register
players at an earlier stage.
87. In accordance with art. 24 par. 3 of the Regulations, the said article does not apply to
decisions whereby sporting sanctions (registration ban or restriction to play in official
matches) are imposed on the basis of art. 17 of the Regulations, the execution of which will
still continue to be carried out by the Disciplinary Committee.
88. Hence, the members of the Chamber decided that the Player shall be banned from playing in
official matches for a period of four-months and Pharco shall be banned from registering new
players, either nationally or internationally, for two entire and consecutive registration periods
d. Costs
89. 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.
90. 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.
91. 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, Al Merrikh Sport Club, is partially accepted.
2.
The First Respondent, Saifeldin Malik Bakhit Maki, has to pay to the Claimant, within 30 days
as from the date of notification of this decision, USD 500,000 as compensation for breach of
contract without just cause plus 5% interest p.a. as from 28 September 2021 until the date
of effective payment.
3.
The Second Respondent, Pharco SC, is jointly and severally liable for the payment of the
compensation mentioned under point 2 above.
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 enclosed Bank Account Registration Form.
6.
The First Respondent and the Second Respondent shall provide evidence of payment of the
due amount in accordance with this decision to [email protected], duly translated, if applicable,
into one of the official FIFA languages (English, French, German, Spanish).
7.
If the aforementioned sum plus interest is not paid within the above-mentioned time limit,
the present matter shall be submitted, upon request by the Claimant, to the FIFA Disciplinary
Committee for its consideration and a formal decision.
8.
A restriction of four months on his eligibility to play in official matches is imposed on the First
Respondent. This sanction applies with immediate effect as of the date of notification of the
present decision. The sporting sanctions shall remain suspended in the period between the
last official match of the season and the first official match of the next season, in both cases
including national cups and international championships for clubs.
9.
The Second Respondent 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.
10. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-3812
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
Fédération Internationale de Football Association
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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