Labour Disputes
Texto da decisão
REF. FPSD-9137
Decision of the
Dispute Resolution Chamber
passed on 20 July 2023
regarding an employment-related dispute concerning
the player Mohammed Benkhemassa
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Mario FLORES CHEMOR (Mexico), member
Alexandra GOMEZ BRUINEWOUD (Uruguay & The Netherlands), member
CLAIMANT/COUNTER-RESPONDENT:
Mohammed Benkhemassa, Algeria
Represented by Ludovic Deléchat
RESPONDENT/COUNTER-CLAIMANT:
Ismaily SC, Egypt
INTERVENING PARTY:
MC Alger, Algeria
pg. 2
REF. FPSD-9137
I. Facts of the case
1.
The parties to the dispute are:
the Algerian player, Mohammed Benkhemassa (hereinafter: the Player or
Claimant/counter-Respondent);
the Egyptian club, Ismaily SC (hereinafter: the Club or the Respondent/counter-Claimant);
and
the Algerian club, MC Algiers (hereinafter: the new club or the Intervening Party).
2.
On 29 January 2022, the Player and the Club concluded a contract called “contract a Player
transfer agreement” (hereinafter: the first contract) valid as from January 2022 until the end
of the season 2025/2026.
3.
Clause 1 of the first contract reads as follows:
“a. The preamble is considered as an integral part of this contract and the contract agreed
on this date is the only one valid and replace any written or oral agreement previously agreed.
b. This contract is considered an integral part of the contract concluded between the club and
the player.
c. whereas Ismaily SC. and the player agreed on a free transfer of the player to the club, this
contract shall be considered as a complementary part of the contract by which the club and
the player wish to agree on the terms and conditions governing their employment contract
according to the following clauses”.
4.
Clause 3 of the first contract reads as follows:
“The first party will pay to the second party during 4.5 seasons (four seasons and half season)
a total amount of 1,010,000 USD net (only One million and ten thousand US Dollars Net)
divided as follows:
-
130,000 USD Net (only one hundred and thirty thousand US Dollars Net) to be paid for
January 2022- end of the season 2021/2022.
220,000 USD net (only Two hundred and twenty thousand US Dollars Net) to be paid on
season 2022/2023.
220,000 USD net (only Two hundred and twenty thousand US Dollars Net) to be paid on
season 2023/2024.
220,000 USD net (only Two hundred and twenty thousand US Dollars Net) to be paid on
season 2024/2025.
220,000 USD net (only Two hundred and twenty thousand US Dollars Net) to be paid on
season 2025/2026”.
pg. 3
REF. FPSD-9137
5.
Clause 4 of the first contract reads as follows:
“Additional rights of the second party:
a. The second party is entitled to receive one flight ticket per year during the term of this
contract.
b. Match bonuses according to the club’s internal regulations”.
6.
On the same date, 29 January 2022, the Player and the Club signed an employment contract
titled “Contract of Professional Football Player” (hereinafter: the second contract) valid for
the 2021/2022 season until the end of the season 2025/2026.
7.
In accordance with clause 2 of the second contract, the Player is entitled to a total gross
amount of USD 1,346,665 payable as follows:
-
2021/2022 season: USD 173,333
USD 60,000 payable on 29 January 2022;
USD 13,333 payable on 28 February 2022;
USD 13,333 payable on 30 March 2022;
USD 13,333 payable on 30 April 2022;
USD 13,333 payable on 30 May 2022;
USD 13,333 payable on 30 June 2022;
USD 13,333 payable on 30 July 2022;
USD 33,335 payable on 30 August 2022.
-
2022/2023 season: USD 293,333
USD 73,333 payable on 15 September 2022;
USD 14,666 payable on 1 October 2022;
USD 14,666 payable on 1 November 2022;
USD 14,666 payable on 1 December 2022;
USD 14,666 payable on 1 January 2023;
USD 14,666 payable on 1 February 2023;
USD 14,666 payable on 1 March 2023;
USD 14,666 payable on 1 April 2023;
USD 14,666 payable on 1 May 2023;
USD 14,666 payable on 1 June 2023;
USD 14,666 payable on 1 July 2023;
USD 73,340 payable on 30 August 2023.
-
2023/2024 season: USD 293,333
USD 73,333 payable on 15 September 2023;
pg. 4
REF. FPSD-9137
USD 14,666 payable on 1 October 2023;
USD 14,666 payable on 1 November 2023;
USD 14,666 payable on 1 December 2023;
USD 14,666 payable on 1 January 2024;
USD 14,666 payable on 1 February 2024;
USD 14,666 payable on 1 March 2024;
USD 14,666 payable on 1 April 2024;
USD 14,666 payable on 1 May 2024;
USD 14,666 payable on 1 June 2024;
USD 14,666 payable on 1 July 2024;
USD 73,340 payable on 30 August 2024.
-
2024/2025 season: USD 293,333
USD 73,333 payable on 15 September 2024;
USD 14,666 payable on 1 October 2024;
USD 14,666 payable on 1 November 2024;
USD 14,666 payable on 1 December 2024;
USD 14,666 payable on 1 January 2025;
USD 14,666 payable on 1 February 2025;
USD 14,666 payable on 1 March 2025;
USD 14,666 payable on 1 April 2025;
USD 14,666 payable on 1 May 2025;
USD 14,666 payable on 1 June 2025;
USD 14,666 payable on 1 July 2025;
USD 73,340 payable on 30 August 2025.
-
2025/2026 season: USD 293,333
USD 73,333 payable on 15 September 2025;
USD 14,666 payable on 1 October 2025;
USD 14,666 payable on 1 November 2025;
USD 14,666 payable on 1 December 2025;
USD 14,666 payable on 1 January 2026;
USD 14,666 payable on 1 February 2026;
USD 14,666 payable on 1 March 2026;
USD 14,666 payable on 1 April 2026;
USD 14,666 payable on 1 May 2026;
USD 14,666 payable on 1 June 2026;
USD 14,666 payable on 1 July 2026;
USD 73,340 payable on 30 August 2026.
8.
Clause 4 of the second contract reads as follows, inter alia:
pg. 5
REF. FPSD-9137
“(…) 4.4. it should not consider any supplement out of this contract unless agreed upon in
writing by the player and the club.
(…)
4.6 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. (…)”
9.
Clause 5 of the second contract reads as follows:
“1. The employment contract maybe terminated by mutual agreement.
2. The Player or Club cannot unilaterally terminate the contract unless the right to terminate
the contract is stipulated in the FIFA Regulations on the Status and Transfer of Player (“FIFA
RSTP”). Particular reference is made to art. 13, art 14, and art q4 bis and 17 of the FIFA RSTP,
which state that a party may terminate a contract where there is just cause If there is just
cause, the contract may be terminated at any time, even during the course of a season.
3. If the Player of Club unilaterally terminates the contract for a just cause reason the other
party will be liable to pay compensation, in accordance with the FIFA RSTP and the
jurisprudence of the FIFA DRC. Likewise if the Player or Club unilaterally terminates the
contract without just cause the party in breach will be liable to pay compensation, in
accordance with the FIFA RSTP and the jurisprudence of the FIFA DRC. In the event of a
dispute”.
10. Clause 6 of the second contract reads as follow (this part of the second contract was
handwritten):
“1. The player shall receive amount (5,000 L.E) only (five thousand Egyptian pound) per month
for accommodation.
2. The player has the right one air ticket per year.
(…)
6. The player acknowledges that he has read all the terms of the financial and administrative
regulations for the first football team and has received a copy of it ; he also acknowledges
that comply with all the obligations and penalties stated in this regulation.
7. The second party (the player) has agreed upon his good will that the first party (the club)
has unilateral the right to terminate this contract at the end of each season.
8. The club will pay to the player an amount of (10,000 $) only (ten thousand US Dollar) as
final contractual compensation for such termination provided that the club notify the player
through his e-mail stated in this contract with fifteen days after the last match of the sporting
pg. 6
REF. FPSD-9137
season. The player will have no right to ask for any other payments whatsoever from the club
because of such termination”.
11. The Club’s “Financial Regulations for the first football team of Ismaily Sporting Club - Season
2021/2022” (hereinafter: the internal regulations) stated, inter alia, the following:
Clause 1 let. C
“25% of the value of the player’s contract is set aside and paid after the end of the season, in
case he participates in 80% of the matches. (…)”
Clause 6.5
“The Players’ housing allowance shall be paid on the condition that they bring their families (wife
and children) with them, and submit documents proving this.”
12. In accordance with the information retrieved from the Transfer Matching System (TMS),
the Egyptian football seasons were as follows:
•
•
Season 2021/2022: started on 25 September 2021 and ended on 30 August 2022;
Season 2022/2023: started on 15 October 2022 and ended on 30 June 2023.
13. By correspondence dated 3 December 2022, the Player put the Club in default of payment
of USD 132,000 net, claiming that he had not been paid since June 2022, setting a 15 days’
time limit to the Club in order to remedy its default.
14. On 19 December 2022, the Player sent a termination notice to the Club, as the amount of
USD 132,000 net remained allegedly unpaid.
15. On 11 May 2023, upon a request of the Club, the Egyptian Football Association (EFA) stated
the following:
“the model contract of professional players in Egypt approved by the EFA (Egyptians and
foreigners) is the only effective contract in Egypt to register players with the EFA, and no other
contract is considered. In addition, players bear the applicable taxes arising from this
contract and any other fees according to the laws, clubs shall deduct them from their players’
financial dues and remit them to the authorities under the player’s responsibility. All players’
contracts shall be approved and registered with the EFA to be enforceable and the player
could be registered in the club’s squad. The EFA’s approved model contract of the Player
Mohamed Benkhemassa got registered with the EFA on 31 January 2023 and it is the sole
registered and valid contract for the Player in Egypt”.
16. On 19 January 2023, the Player concluded an employment contract with the new club valid
as from the date of signature until 20 July 2025, including a monthly gross salary of DZD
2,292,756.67.
pg. 7
REF. FPSD-9137
II. Proceedings before FIFA
17. On 3 February 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Player
18. The Player filed a claim for overdue payables and compensation for breach of contract.
19. According to the Player, the Club and the Player concluded 2 different contracts on the
same day for tax-related reasons and registration purposes at the EFA.
20. The player stated that: “at the time of termination of the employment contract, i.e. on 19
December 2022, the Club had to pay the total amount of USD 398,998.67 net based on both
Contract 1 and Contract 2. Indeed, the Club had only paid the instalments of USD 60,000
(January 2022), USD 13,333 (February to May 2022) based on Contract 2 and nothing based on
Contract 1”. Therefore, the Player terminated the employment relationship with just cause
in line with art. 14bis of the Regulations on the Status and Transfer of Players (RSTP).
21. The Player requested the following relief:
“1. The claim of [the Player] shall be accepted in its entirety.
2. [The Club] shall be obliged to pay to [the Player] the amount of USD 398,998.67 net as
outstanding salaries, plus interest at a rate of 5% per year over said amount, as from the
relevant due dates until the effective date of payment.
3. [The Club] shall be obliged to pay to [the Player] the amount of USD 1,957,666.33 net as
compensation for breach of the employment contract, plus 5% interest per annum over said
amount as of the date of termination of the employment contract, i.e. on 19 December 2022.
4. [The Club] shall be obliged to pay to [the Player] the amount of Egyptian Pound 270,000
as compensation for the accommodation, plus 5% interest per annum over said amount as
of the date of termination of the employment contract, i.e. on 19 December 2022.
5. [The Club] shall be obliged to pay to [the Player] the amount of USD 261,851.67 net in
accordance with article 17 par. 1 lit. ii) FIFA Regulations on the Status and Transfer
(hereinafter: RSTP).
6. Art. 24bis of the FIFA RSTP shall be applied in the present matter. Consequently, a ban from
registering any new players, either nationally or internationally, for two entire and
consecutive registration periods shall be applied against [the Club]” (emphasis added on
the original).
pg. 8
REF. FPSD-9137
b. Position of the Club and counterclaim
22. In its reply, the Club contested the claim of the Player and filed a counterclaim.
23. As to the contractual basis, the Club alleged that the first contract was signed with amounts
excluding the income tax and that therefore, on the same day the parties cancelled the first
contract and signed the final and only valid contract, i.e., the second contract.
24. The Club argued that the parties’ intention was to cancel the first contract automatically by
signing the second contract on the EFA unified and mandatory template for all players in
Egypt. The Club further added that the second contract is the last and most recent contract.
25. In continuation, the Club argued that as of the date of termination, the Club allegedly paid
the Player USD 112,390 net as follows:
26. As to the housing allowance, the Club referred to the internal regulations (clause 6.5) and
stated that the accommodation payment was conditional in that the player should bring
his family to Egypt and prove this.
27. In continuation, the Club referred that clause 2 and 6 of the second contract stipulated
gross amounts and according to the Club, the Player’s salary was subject to the following
deductions:
-
Income tax of 25 % in line with Law 26/2020 dated 5 July 2022. The Club provided
with a copy of the law 26/2020 regulation, two letters from EFA confirming said
imposition and a copy of the income taxes proof of payment. On the latter, the Club
clarified that “in accordance with the long-standing practice of the Egyptian Tax
Authority, invoices are issued upon Tax inspections and Tax statement filed by the
employer mentioning the global number of its employees and their salaries”.
-
State’s resources development tax of 10%: The Development Tax Law sorted variable
percentages ranging between 3% up to 10% on players’, coaches’, in casu, according
to the Club, the Player was taxed at the highest rate 10%. According to the Club, it
paid the amount of USD 46,666 on 17 September 2022, as the total salary for
pg. 9
REF. FPSD-9137
2021/2022 and 2022/2023 season was USD 466,666. The Club provided a copy of Law
no. 83 of 2020 and a proof of payment of the development tax.
-
Syndicate of Sports professions’ Tax of 10%: the Player’s salary is to be subject to 10%
tax, according to the Club it paid on 1 February 2022, an amount of USD 17,333 for
2021/2022 season and on 17 September 2022, an amount of USD 29,333 for
2022/2023 season. The Club provided a copy of the provisions of Law No. 3/1987 and
the proof of payment.
28. The Club further stated that taxes contribution can never be included in the assessment of
the presence or absence of just cause. The Club concluded that it “duly paid all the taxes on
behalf of the Player and hence it would not be appropriate to be ordered to pay them again to
the Player”.
29. Thereafter, the Club argued that according to its internal regulations (clause 1 lit. c), the
Player’s salary was subject to a participation rate, in this context the Club mentioned that
“the Player’s participation rate is much lower than 80% of the Club’s matches, he shall not be
entitled to the participation rate of the Season 2021/2022 in full (which is the last installment of
the season) that shall be paid after the end of the Season 2021/2022 (in full if the Player’s
participation is greater than 80% or pro rata if less than 80%)”.
30. The Club provided with the following calculation:
-
-
-
“Before calculating the Player’s entitled portion of the participation rate, we hereby
calculate the accurate amount of the participation rate installment itself as follows:
a) Its gross amount: USD 33,335
b) After deducting the 25% income tax, 10% Development Tax and 10% Sports
Profession Tax: USD 18,334
Since the player participated in 09 out of 27 matches with the Club, he shall be entitled to
a percentage of 33.3333% of the net amount of the participation fee (i.e. USD 18,334)
[18,334$ x 33.3333% = USD 6,111].
Accordingly, the Player is not entitled to the remaining part of the participation rate
which is USD 18,334 – USD 6,111 = USD 12,223”.
31. In continuation, the Club stated that upon the Player’s request of salaries and the default
notice “the Club informed the Player with his lawyer’s notice of default and asked him if the
Club’s explanations are sufficient, which was positively confirmed and acknowledged by the
Player who also confirmed that he will close the matter with his lawyer”.
32. In view of the foregoing, the Club considered that the Player terminated the contract
without just cause, justifying in with the following breakdown:
“THE PLAYER’S GROSS DUES AS PER THE CONTRACT (UNTIL 19 DECEMBER 2022): USD
290,664
pg. 10
REF. FPSD-9137
THE PLAYER’S INCOME TAX (25%) ON 290,664$ = USD 72,666
THE PLAYER’S COLLECTED AMOUNTS (EXHIBIT 2): USD 112,390
THE PLAYER’S DEVELOPMENT TAX (EXHIBIT 11): USD 46,666
THE PLAYER’S SYNDICATE OF SPORTS PROFESSION TAX (EXHIBIT 13): USD 46,666
THE PLAYER’S NON-ENTITLED PARTICIPATION RATE: USD 12,223
THE PLAYER’S DUES: 290,664 – (72,666 + 17,333 + 29,333 + 46,666 + 112,390 + 12,223) =
USD 53.” (Emphasis added on the original).
33. In view of the above, the Club requested compensation for the unlawfully termination of
the employment relationship by the Player.
34. The club requested the following relief:
“In view of all the above, we request this honorable chamber:
1) To accept this Counterclaim against the Respondent(s); and
2) To hold an oral hearing for the Parties based on exceptional circumstances; and
3) To rule that the Player prematurely terminated the Contract without just cause; and
4) To rule that the New Club induced the Player to terminate the Contract without just cause;
and
5) To condemn the Player and the New Club, jointly and severally, to pay the following
compensation (in total: USD 829,200 + 5% p.a.):
o Residual value of the Contract: USD 580,800.55 NET+ 5% p.a. as from 19 Dec 2022
o Loss of Transfer Fee: USD 200,000 + 5% p.a. as from 19 Dec 2022
o Specificity of Sport: USD 48,397.8 NET + 5% p.a. as from 19 Dec 2022; and
6) To ban the Player for a duration of six month from participating in any football activity
based on Article 17 Para 3 of the FIFA RSTP; and
7) To ban the Second from registering any new players, either nationally or internationally,
for two registration periods under article 17, Paragraphs 4 and 5 of the FIFA RSTP; and
8) To fix a sum of EUR 20,000 (twenty thousand Euros), to be paid by the Respondents to
the Claimant, to help the payment of its legal fees and costs.
9) As a consequence of the above, to condemn the Respondents to pay all expenses and costs
of the present proceedings, if any.” (Emphasis added on the original).
c. Response of the Player to the counterclaim
35. In his reply to the counterclaim, the Player stated that some statements made by the Club
are misleading and untrue. Additionally, the Player indicated that the Club’s factual
allegations do not meet the burden of proof in line with the Procedural Rules.
36. With regards to the validity of the two contracts, the Player stated that the parties signed
both contracts on the same day and stressed that said contracts contain all fundamental
principles of a contract. Moreover, there is no clause in the contracts stating that one would
replace the other.
pg. 11
REF. FPSD-9137
37. As to the Club’s allegation that the Club clarified the situation with the Player prior the
termination, the Player indicated that there is no proof on file that the Club would have
spoken with the Player after the default notice letter.
38. In continuation, as to the housing allowance, the Player indicated that in accordance with
the second contract he is entitled to EGP 270,000.
39. Thereafter, as to the proof of payments provided by the Club, the Player indicated that “the
Club did not provide any evidence supporting its allegation of having paid the Player with
cheques in accordance article 12 para. 5 of the Procedural Rules”. The only cheque in the
Player’s possession was never cashed as it was impossible to do so.
40. As to the tax deductions, the Player only mentioned that at the time of the termination the
Club had to pay USD 398,998.67 based on the 2 contracts.
41. Alternatively, in case it is decided that both contracts do not form one sole relationship, at
the date of termination, the amount due would be USD 177,332 that represented more
than 7 monthly salaries as outstanding, and the Player had just cause to terminate the
contract.
42. Finally, the Player indicated that “the alleged payment of taxes for a club does not justify to
stop the payment of a Player’s salary. In other terms, the Club cannot justify the non-payment
of the Player’s salary since months because of tax related reasons”.
43. The request for relief remained unchanged.
d. Final comments of the Club
44. According to the Club, the second contract superseded the first contract and stated that it
was never necessary to include a clause clarifying this as according to the concept “Accord
and Satisfaction”. Moreover, the Club referred to CAS jurisprudence stating that in order to
have two agreements biding two different services shall be rendered.
45. In view of the foregoing, the Club stated that the second contract is the only and biding
contract, as according to the Club, the Player acknowledged that the second contract
replaced the first contract and that the second contract was registered in TMS and at the
EFA.
46. As to the applicable taxes, the Club further argued that it discharged its burden of proof
and referred to the evidence provided in the counterclaim. Moreover, the Player did not
dispute any of the Club’s submissions in this regard. Additionally, the Club mentioned that
the taxation system in any country is a public policy matter and that it cannot, in any way,
be breached or contradicted or replaced by any parties’ agreement.
pg. 12
REF. FPSD-9137
47. As to the payments, the Club stated that it paid the Player USD 112,390, and that the Player
“acknowledged the receipt of all the cheques by signing on each single one, and he did not deny
his signatures or contest them in any way”.
48. In continuation, as to the housing allowance the Player is not entitled to it and referred to
the internal regulations.
49. Thereafter, as to the participation rate, the Club argued that the Player did not contest it in
its reply and referred to the internal regulations which are binding to the Club’s players
without any exception. The Club stated that the Player’s participation was low i.e., 23%.
Additionally, the Club argued that it had 2 coaches, and it was their decision not to put the
Player, the Club concluded that it had no influence on that.
50. Furthermore, the Club referred to the Player’s bad faith considering that if the Player had
2 agreements biding, then at the time of the default notice, he would not ask USD 132,000
for June 2022 to December 2022, he would request a higher amount. Moreover, the Club
stated that “as part of the Club’s payments to the Player, there is a cheque dated 26 August
2022 (Exhibit 2 of our Counterclaim) in the amount of USD 22,390. The Player never complained
of any problems arising from this cheque and remained silent for almost four (4) months (from
26 August until 19 December 2022) until he allegedly had a failure attempt to cash the cheque,
the Player allege in the forged document that it is stamped by bank on 19 December 2022 after
the termination, and despite there is no dispute on the amount he received which proves his
bad faith as he never submit or mention this document”.
51. The Club concluded that that it only owned the Player USD 53, and thus, this did not
constitute a just cause.
52. The Club requested the following relief:
“To accept this Response against the Player; and
2) To rule that the Player prematurely terminated the Contract without just cause with all
consequences detailed in the Club’s Counterclaim
3) Alternatively, if the Player is deemed to have terminated the Contract with just cause, he
should not be entitled to any compensation of any kind;
4) If the Player shall be entitled to any compensation, it shall be mitigated with 75%”.
e. Position of the Intervening Party
53. The Intervening Party failed to submit with its position within the timeframe granted by the
FIFA general secretariat.
pg. 13
REF. FPSD-9137
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
54. 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 3 February 2023 and submitted
for decision on 20 July 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.
55. 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 par.1 lit. b)
of the RSTP (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 from Algeria and a club from Egypt, with the involvement of
an Algerian club.
56. 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 RSTP (May 2023 edition), and considering that the present claim was lodged
on 3 February 2023 and the counterclaim on 12 March 2023, the October 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
57. 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
58. 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
pg. 14
REF. FPSD-9137
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
59. The foregoing having been established, the DRC moved to the substance of the matter, and
took note of the fact that the parties strongly dispute (i) the validity of the two contracts
and (ii) the justice of the early termination of the employment relationship by the Player,
based on the alleged non-payment of certain financial obligations by the Club.
60. In this context, the Chamber acknowledged that its task was to determine the following
points:
-
Are the two contracts valid and binding?
-
Had the Player just cause to terminate the contract?
61. The DRC proceeded thus to examine these issues in turn.
Are the two contracts valid and binding?
62. The Chamber recalled the position of the parties on this point and observed that the Player
considered that the two contracts were signed on the same date, and both contracts
should be biding as they contain all essentiali negotii elements. The Club, conversely,
considered that the second contract superseded the first contract and that it should be the
only contract valid and biding in this employment relationship.
63. Having reviewed the submissions and evidence at its disposal, the Chamber concluded that
the two contracts were valid and binding to the present relationship on the following
grounds:
-
Two contracts were signed on the same date, the first contract titled “contract a
Player transfer agreement” and the second contract titled “Contract of Professional
Football Player”.
-
In accordance with clause 1 of the first contract, it mentioned that the first contract
is a complementary contract to the employment contract:
“a. The preamble is considered as an integral part of this contract and the contract
agreed on this date is the only one valid and replace any written or oral agreement
previously agreed.
b. This contract is considered an integral part of the contract concluded between the
club and the player.
pg. 15
REF. FPSD-9137
c. whereas Ismaily SC. and the player agreed on a free transfer of the player to the club,
this contract shall be considered as a complementary part of the contract by which
the club and the player wish to agree on the terms and conditions governing their
employment contract according to the following clauses” (emphasis added).
-
The non-registration of the first contract in TMS does not imply that other private
contracts were signed between the parties. Moreover, the Chamber recalled that it
is the Club that is responsible to upload this information in TMS and not the Player.
-
Finally, the Chamber considered that if according to the Club the first contract was
signed with amounts excluding the deductible taxes and that on the same day the
parties cancelled the first contract and signed the final and only valid contract, i.e.,
the second contract, which contained the amounts in gross. Then, the amounts
disclosed in the two contracts (USD 1,010,000 in the first contract and USD 1,346,665
in the second contract) do not correspond to the tax that the club claimed as
deductible, i.e., 45%.
Had the Player just cause to terminate the contract?
64. In continuation, the DRC proceeded to determine, based on the evidence presented by the
parties, whether the claimed amounts had in fact remained unpaid by the Club.
65. The DRC noted that the Player claims not having received his remuneration corresponding
to part of the second contract as well as the amounts mentioned in the first contract, and
all housing allowances. Furthermore, the Player has provided written evidence of having
put the Club in default on 3 December 2022, i.e., at least 15 days before unilaterally
terminating the contract on 19 December 2022.
66. The DRC also 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.
Therefore, the Chamber went on to analyse the arguments and evidence provided by the
Club.
67. The Chamber addressed the argument of the Club in respect of the variable remuneration
of the Player. In doing so, the Chamber deemed that it was necessary to first analyse
whether said reduction of the Player’s salary made by the Club was indeed lawful. In this
context, the Chamber highlighted that, in general, potestative clauses – i.e., clauses
dependent on an event which can only be triggered by one of the contractual parties and
upon the latter’s wish – cannot be applied, as they limit the rights of the contractual
counterparty in an excessive manner and lead to an unjustified disadvantage of the latter.
68. The Chamber understood that the clause in question inserted in the internal regulations
of the Club (clause 1 let. c) is clearly potestative as it unilaterally provides all the power to
pg. 16
REF. FPSD-9137
the Club to decide upon a considerable reduction of the Player’s salary, since it is the Club,
at its sole discretion, who decides if the Player is fielded or not. On this basis, the Chamber
decided that such clause has a clearly abusive nature and shall not have any legal effect in
the relevant employment relationship.
69. In continuation, the DRC turned to the payments allegedly performed by the Club as per
the below, totalling: USD 112,390:
-
Cheque n° 115052275 dated 01.02.2022 for an amount of USD 5,000;
Cheque n° 115052273 dated 10.02.2022 for an amount of USD 5,000;
Cheque n° 115052272 dated 10.02.2022 for an amount of USD 35,000;
Cheque n° 115052301 dated 26.08.2022 for an amount of USD 22,390;
Bank transfer dated June 2022 for an amount of USD 30,000;
Bank transfer dated July 2022 for an amount of USD 15,000.
70. In this respect, the Chamber recalled the position of the Player who indicated that he only
received USD 60,000 for the first instalment and USD 13,333 for February to May 2022.
Additionally, the Player contested that he has been paid with cheques, considering that the
only cheque in the Player’s possession was n° 115052301 and it was never cashed out as it
was impossible to do so. To support this position, the Player provided with a document
allegedly issued by the Bank CIB which stated that the reason of return of the cheque n°
115052301: “insufficient Funds, Partial Payment refused without any responsibility related to
CIB”. The Chamber further noted that said document was challenged by the Respondent as
according to it, the document was forged.
71. Without entering the discussion whether the document presented by the Player was forged
or whether the Club effectively provided the Player those cheques; the Chamber
considered that the issuance of a cheque does not sufficiently prove that the amounts were
effectively paid to the Player. The Chamber mentioned that a document that could confirm
the payment of such amounts would be a confirmation of the bank or the Club’s bank
statements, however, none of those documents were provided. Therefore, the Chamber
concluded that the amount paid to the Player is only the amount that he acknowledged,
i.e., USD 73,333 (USD 60,000 plus 13,333), on the grounds that the Club has failed to
demonstrate otherwise.
72. Additionally, as the Player acknowledged that a cheque was in his possession without the
possibility to cash it out, the Chamber requested the Player to return the cheque
n°115052301 to the Respondent/Counter-Claimant within 30 days following the
notification of this decision, in order to ensure that no unjust enrichment can take place.
73. In continuation, with regards to the housing allowance claimed by the Player based on the
second contract, the same is contested by the Club referring to the internal regulations.
The Chamber considered however that said amount was contractually stipulated (clause
6.1 of the second contract) and that the Player is entitled to that amount.
pg. 17
REF. FPSD-9137
74. Lastly, as to the tax deductions claimed by the Club of 45% (corresponding to Income Tax
at 25%, State’s Resources’ Development Tax at 10% and Syndicate of Sports Professions’
Tax at 10%) and applicable to the amounts agreed under the second contract; the Chamber
decided to accept the allegations of the Club to deduct said amounts on the following basis:
firstly, the second contract referred to gross amounts, and secondly but principally because
the evidence provided by the Club regarding the legal basis and the payment of said taxes
were not contested by the Player in his reply to the counterclaim, thus leading to the
conclusion that he accepted these allegations/evidence.
75. The Chamber wished to highlight that the State’s Resources’ Development Tax (10%) and
Syndicate of Sports Professions’ Tax (10%) deductions appears to be contributions/or fees
that were paid, rather than taxes (income and wealth taxes), which should be established
in the relevant contracts. However, and considering that the Player did not contest the
evidence and payment of such taxes, the Chamber decided considering the very specific
and limited circumstances of the dispute at hand to accept the deduction of said taxes. The
deduction, so remarked the Chamber, was due only on the salaries agreed under the
second contract until the termination of the employment relationship.
76. As such, the DRC performed the amounts deducted were as follows:
Period
2021/2022
season
September 2022
October 2022
November 2022
December 2022
Total – second
contract
Amount
in USD
25%
10%
10%
TOTAL in USD
173,333 43,333,25 17,333,3 17,333,3
73,333 18,333,25
7,333,3
7,333,3
14,666
3,666,50
1,466,6
1,466,6
14,666
3,666,50
1,466,6
1,466,6
14,666
3,666,50
1,466,6
1,466,6
95,333,15
40,333,15
8,066,30
8,066,30
8,066,30
290,664
159,865,20
72,666
29,066
29,066
77. In light of the above, the Chamber considered that until the termination of the employment
relationship the due amounts by the Club were EGY 55,000 as housing allowance and USD
216,532.20 (USD 130,000 (as per the first instalment of the first contract) plus USD
159,865,20 (as per second contract) less USD 73,333).
78. Having so found, the DRC highlighted in consideration of the foregoing that the Club had
repeatedly and for a significant period been in breach of its contractual obligations towards
the Player. Consequently, the Chamber concluded that the Player had just cause to
unilaterally terminate the employment relationship based on art. 14 of the Regulations. It
followed that the counterclaim of the Club was dismissed.
pg. 18
REF. FPSD-9137
ii. Consequences
79. 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.
80. 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 USD 216,532.20
and EGP 55,000.
81. 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., USD 216,532.20 and
EGP 55,000.
82. 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 follows:
-
On the amount of USD 130,000 as from 30 August 2022 until the date of effective
payment.
On the amount of USD 42,534.20 as from 16 September 2022 until the date of
effective payment.
On the amount of USD 14,666 as from 2 October 2022 until the date of effective
payment.
On the amount of USD 14,666 as from 2 November 2022 until the date of effective
payment.
On the amount of USD 14,666 as from 2 December 2022 until the date of effective
payment.
On the amount of EGP 55,000 as from 19 December 2022 until the date of
effective payment; as requested by the Player in accordance with principle ne ultra
petita.
83. 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.
pg. 19
REF. FPSD-9137
84. 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.
85. 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.
86. 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 amounts of USD 1,936,001 and EGP 215,000 serve as the basis for the
determination of the amount of compensation for breach of contract.
87. In continuation, the Chamber verified as to whether the Player had signed an employment
contract with another club during the relevant period, 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.
88. Indeed, the Player found employment with the Intervening Party. In accordance with the
pertinent employment contract, the Player was entitled to approximately DZD 2,292,756.67
per month. Therefore, the Chamber concluded that the Player mitigated his damages in
the total amount of DZD 68,782,700.10, that is, DZD 2,292,756.67 times 30 months, which
is approximately USD 504,148.
89. 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 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 due to said reason i.e., overdue payables by the Club, and therefore
decided that the Player shall receive additional compensation.
90. In this respect, the DRC decided to award the amount of additional compensation of USD
73,333.26, i.e., three times the average monthly remuneration of the Player.
pg. 20
REF. FPSD-9137
91. 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 USD 1,505,186.26 (i.e., USD 1,936,001 minus USD 504,148 plus USD 73,333.26) and EGP
215,000 to the Player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
92. 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 December 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
93. 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.
94. 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.
95. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, 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.
96. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Player in the Bank Account Registration Form, which is attached
to the present decision.
97. 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
98. 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,
pg. 21
REF. FPSD-9137
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
99. 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.
100. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 22
REF. FPSD-9137
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Mohammed Benkhemassa, is partially
accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Ismaily SC, is rejected.
3.
The Respondent/Counter-Claimant must pay to the Claimant/Counter-Respondent the
following amounts:
- USD 130,000 as outstanding remuneration plus 5% interest p.a. as from 30 August 2022
until the date of effective payment;
- USD 42,534.20 as outstanding remuneration plus 5% interest p.a. as from 16 September
2022 until the date of effective payment;
- USD 14,666 as outstanding remuneration plus 5% interest p.a. as from 2 October 2022
until the date of effective payment;
- USD 14,666 as outstanding remuneration plus 5% interest p.a. as from 2 November
2022 until the date of effective payment;
- USD 14,666 as outstanding remuneration plus 5% interest p.a. as from 2 December
2022 until the date of effective payment;
- EGP 55,000 as outstanding remuneration plus 5% interest p.a. as from 19 December
2022 until the date of effective payment;
- USD 1,505,186.26 and EGP 215,000 as compensation for breach of contract without
just cause plus 5% interest p.a. as from 19 December 2022 until the date of effective
payment.
4.
Any further claims of the Claimant/Counter-Respondent are rejected.
5.
The Claimant/Counter-Respondent shall return the cheque n° 115052301 to the
Respondent/Counter-Claimant within 30 days following the notification of this decision,
failing which and upon request of the Respondent/Counter-Claimant, the matter shall be
submitted to the FIFA Disciplinary Committee.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
pg. 23
REF. FPSD-9137
7.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent/Counter-Claimant 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.
8.
The consequences shall only be enforced at the request of the Claimant/CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
9.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 24
REF. FPSD-9137
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 25