Labour Disputes
Texto da decisão
REF 20-00894
Decision of the
Dispute Resolution Chamber
passed on 14 October 2021
regarding an employment-related dispute concerning the player Khalid
Boutaib
BY:
Frans de Weger (Netherlands), Chairperson
Jose Luis Andrade (Portugal), member
Roy Vermeer (Netherlands), member
CLAIMANT / COUNTER-RESPONDENT:
Zamalek SC, Egypt
Represented by Mr Salvatore Civale
RESPONDENT / COUNTER-CLAIMANT:
Khalib Boutaib
Represented by Mr Thomas Normand
INTERVENING PARTY:
Le Havre SC
Represented by Mr Gauthier Moreuil
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REF 20-00894
I.
Facts of the case
1.
On 21 January 2019, the Egyptian club, Zamalek Sports Club (hereinafter: the Claimant /
Counter-Respondent
or
Zamalek) and
the
French
/
Moroccan
player, Khalid Boutaib (hereinafter: the Respondent / Counterclaimant or Player) concluded
an employment contract (hereinafter: the contract), valid for “three seasons and a half”, i.e.
as from “January 2018/2019” until “(2021/2022)”.
2.
According to the contract, the parties agreed upon the following gross remuneration:
•
2018/2019 season: total remuneration of EUR 671,140 as follows:
- EUR 335,570, due on 20 January 2019;
- EUR 55,928, due on 5 February 2019;
- EUR 55,928, due on 5 March 2019;
- EUR 55,928, due on 5 April 2019;
- EUR 55,928, due on 5 May 2019;
- EUR 55,928, due on 5 June 2019;
- EUR 55,928, due on 5 July 2019;
•
2019/2020 season: total remuneration of EUR 1,290,321 as follows:
- EUR 645,161 on 1 August 2019;
- EUR 64,516 due on 1 September 2019;
- EUR 64,516 due on 1 October 2019;
- EUR 64,516 due on 1 November 2019;
- EUR 64,516 due on 1 December 2019;
- EUR 64,516 due on 1 January 2020;
- EUR 64,516 due on 1 February 2020;
- EUR 64,516 due on 1 March 2020;
- EUR 64,516 due on 1 April 2020;
- EUR 64,516 due on 1 May 2020;
- EUR 64,516 due on 1 June 2020;
•
2020/2021 season: total remuneration of EUR 1,290,321 as follows:
EUR 645,161 on 1 August 2020;
EUR 64,516 due on 1 September 2020;
EUR 64,516 due on 1 October 2020;
EUR 64,516 due on 1 November 2020;
EUR 64,516 due on 1 December 2020;
EUR 64,516 due on 1 January 2021;
EUR 64,516 due on 1 February 2021;
EUR 64,516 due on 1 March 2021;
EUR 64,516 due on 1 April 2021;
EUR 64,516 due on 1 May 2021;
EUR 64,516 due on 1 June 2021;
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•
2021/2022 season: total remuneration of EUR 1,290,321 as follows.
- EUR 645,161 on 1 August 2021;
- EUR 64,516 due on 1 September 2021;
- EUR 64,516 due on 1 October 2021;
- EUR 64,516 due on 1 November 2021;
- EUR 64,516 due on 1 December 2021;
- EUR 64,516 due on 1 January 2022;
- EUR 64,516 due on 1 February 2022;
- EUR 64,516 due on 1 March 2022;
- EUR 64,516 due on 1 April 2022;
- EUR 64,516 due on 1 May 2022;
- EUR 64,516 due on 1 June 2022.
3.
According to Zamalek, on 18 April 2019, the player “suffered right knee medial collateral
ligament (MCL) second degree sprain during the first half of the match”.
4.
In this context, on 20 April 2019, the Player went to the medical center for magnetic
resonance imaging (MRI), where the “results confirmed that he had a right MCL second
degree sprain with chronic patellar tendinitis”. Subsequently, Zamalek allegedly arranged for
the player a specific program of 2 physical therapy and rehabilitation sessions per day.
5.
On 7 May 2019, “the Player rescanned his right knee MRI and the outcome was chronic
patellar tendinitis and regressive MCL sprain”.
6.
As per Zamalek, on 26 May 2019, the player returned to play at the final confederation game
against the Moroccan club Berkane club at the Borg Al Arab Stadium in Alexandria, Egypt for
the last 10 minutes of the match. In this regard, Zamalek wished to emphasize that the player
held that “his pain did not prevent him from participating in matches and training”.
7.
On 31 May 2019, the player allegedly went to Morocco to join the national team and
performed his group training with the team. In continuation, according to Zamalek, the player
started participating at the African Cup of Nations. The club pointed out that the player
participated “despite the firm dissenting opinion of the Club’s medical head since the Player
did not fully recover”.
8.
According to Zamalek, on 26 June 2019, “the Player felt a click in his right knee during
training with the national team”. On the same date, the player “went for MRI investigation
and the result was right MCL recurrence second degree sprain (no tear) and partial tear at the
patellar tendon”. As per Zamalek, the player immediately started a further physical therapy
and rehabilitation program.
9.
In August 2019, during the pre-season preparation, the player was allegedly recommended
by Zamalek to perform a surgery. However, according to Zamalek, the player showed
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confusion and hesitation about the decision of performing such surgery and “the Player
trained with painkillers and analgesics, but he was not totally in good health and shape (in
and out training process).”
10. On 15 August 2019, Zamalek accepted the player’s request to travel to Morocco in order
to “practice an injection to his knee“. As per Zamalek, it took care of the relevant invoices
making a refund in favour of the Player.
11. On 23 August 2019, the player requested Zamalek’s authorization to travel to France “for a
check and follow up with a doctor of his choice”. Zamalek maintained having accepted the
player’s request. Furthermore, Zamalek also indicated that it “refunded the costs afforded by
the player for the trip and the other expenses”.
12. According to Zamalek, on 28 October 2019, the player travelled with Zamalek to Germany
“for deeper investigations and second opinion”. The player expressed his disagreement to
have the surgery to be performed in Germany and requested Zamalek’s authorization to
travel again to France and perform the surgery in France. Zamalek sustained having accepted
the Player’s personal decision.
13. As per Zamalek, the player was in France as from 31 October 2019 until 15 November 2019.
14. On 16 November 2019, the player came back to Egypt. According to Zamalek, it “was
surprised to note that [the player] did not perform the surgery”.
15. According to Zamalek, as from 16 November 2019 until the end of the month, the player
allegedly continued his treatment at Zamalek and “tried to train normally to prove that he
was fine and well-conditioned despite the adverse opinion of the medical team which
confirmed that the surgery was absolutely necessary for a complete recovery”.
16. On 6 December 2019, the Player travelled to France with Zamalek’s approval and supporting
documents to perform the surgery. According to Zamalek, the player was authorized to stay
in France “until the end of December (2 weeks), after the surgery”. Zamalek further
maintained having covered “analysis and medical care as well as any further costs, included
accommodation to travel and do the medical”.
17. As per Zamalek, at the beginning of January 2020, the player was allegedly scheduled to
perform his physical therapy and rehabilitation program in Egypt under the supervision of
Zamalek. However, according to it, the Player did not show up since then and allegedly did
not reply to any letter sent by Zamalek to the player. Zamalek held that it did not know
whether the player was in Egypt or in France.
18. In this context, on 4 January 2020, Zamalek sent its first warning letter to the player.
Zamalek maintained having sent 7 further warning letters to the player.
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19. On 16 January 2020, the player put Zamalek in default for the payment of outstanding
salaries in the total amount of EUR 381,370.
20. On 30 January 2020, Zamalek terminated the employment relationship with the player “due
to the reiterated, unjustified and unauthorized absences of the Player, who decided not to
answer nor to come back to the Club’s premises and follow the medical instructions provided
by the Claimant’s medical center”.
21. On 5 October 2020, the French club, Le Havre AC (hereinafter: Le Havre or Respondent
II) made a contract offer to the player.
22. On 2 January 2021, Le Havre and the player concluded the employment contract
(hereinafter: Contract II) valid as from the date of signature until 30 June 2022, according to
which it undertook to pay to the player a monthly salary of EUR 18,000.
II. Proceedings before FIFA
23. On 26 June 2020, 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 / Counter-Respondent
24. As per Zamalek, it “has always fulfilled in full [its] financial obligations by paying the Player
all the salaries and amount due in line with the provision of the contract for the seasons
2018/2019 and 2019/2020”.
25. Zamalek stated that, in spite of all its efforts to reach an amicable solution, the Player never
returned to Egypt and thus it had no other choice than to submit the present claim to the
FIFA Dispute Resolution Chamber.
26. Finally, Zamalek explained that “The remaining value of the Employment Contract is equal to
EUR 2,967,738.00.” and that “The transfer costs afforded by the Claimant to ensure the
sporting services of the Player are equal to EUR 1,500,000 (Exhibit ZA_2).”
27. On 23 June 2020, Zamalek lodged a claim against the player in front of FIFA requesting the
following:
a. “the Club [Zamalek] terminated the Employment Contract with just cause;
b. the Player must pay in favour of Zamalek, as compensation, the amount of
EUR 4,467,738;
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c. the Player must pay interests at the rate of 5% per year on any amount due in the favour
of the Club, starting from 30 January 2020 until the date of effective payment;
d. The Respondent [the player] be sanctioned with a six-month ban from playing in official
matches or at least four months, pursuant to article 17, paragraph 3, of FIFA RSTP;
e. Any other measure considered necessary in the decision of the case at stake be
applied.”
b. Position of the Respondent / Counter-Claimant
28. In his reply, the player firstly stated that Zamalek’s claim is to be declared vexatious,
groundless and in bad-faith.
29. The player deemed that Zamalek was aware of the player’s situation, both during the month
of December 2019 and during the month of January 2020, when Zamalek decided to
unilaterally terminate the employment contract.
30. In this regard, the player pointed out that he went to France with the written authorization
of the Egyptian Club in December 2019 to prepare the surgical operation and then to proceed
with the operation.
31. The player alleged that in December 2019 he informed several people of Zamalek “of the
progress of his surgery, in particular by sending the estimate of this operation to the doctor
of the Club so that the latter may be available on one of the dates set by the French surgeon
in charge of the surgery, should this estimate be accepted.”
32. The player further alleged that in December 2019 and January 2020, he requested Zamalek
“to confirm that the surgery could be carried out in France, in Marseille, following the
estimate that he had sent and that the Club had to expressly accept since it was not the
responsibility of the Player to pay for the cost of such surgery and to accept the terms and
conditions of the surgery alone.”, however to no avail.
33. In continuation, the player maintained that Zamalek statement of January 2020 that they
were not aware of the whereabouts of the player, in order to justify the unilateral termination
of the contract, showed Zamalek bad faith, given that Zamalek was perfectly aware of the
reasons of his absence.
34. The player added that the various emails provided by Zamalek supporting the unilateral
termination, in which Zamalek questioned the player about the reasons for his absence "for
weeks without the Club's authorisation", were not sent to the player by any communication
means that would have made him aware of them at the time the mails were sent.
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35. In this regard, the player held that according to the English version of the contract, in addition
to his salary, he was entitled to a signing bonus in the amount of USD 129,034 and that he
has never received it. In this respect, the player affirmed that exhibit 6 of Zamalek’s claim
“contains this amount and the 22.5% tax but does not provide any confirmation of a transfer
to the Player's bank account or details of salaries paid from January 2019 onwards for the
2018-2019 season, stating only that the club has consistently fulfilled its financial obligations
in compliance with the Employment Contract.”
36. The player maintained that contrary to what Zamalek claimed, the sum of EUR 181,370 for
the salary of August 2019 has not been paid by Zamalek yet, “which has still not transferred
the sum of €153,936.00 available by cheque to Khalid BOUTAÏB's bank account, despite the
disagreement as regards the amount, for no reason other than the desire to cause prejudice
to the Player.”
37. As to Zamalek termination of the employment relationship between the parties, the player
held that it “relied on this long, undue, recurrent and non-authorised absence of the Player
at both collective and individual drills and official games of the club, as well as on the refusal
to follow the protocol designed for the surgical operation and refusal to follow the
rehabilitation program to assert the existence of a just cause permitting the unilateral
termination of the Employment Contract, the sole Player being at fault.”
38. In this respect, the player stated that Zamalek was fully aware of the reasons of his absence
and added that “the content of letters sent by the Club on 4th January 2020, 6th January 2020
and 8th January 2020 is highly disputable, knowing that the letter terminating the
Employment Contract was mostly written on the basis of these letters. (…) The 3 letters
mentioned above were written in the exact same way. The only difference lies in the fact that
the letter dated 4th January only was sent in duplicate to FIFA and to the Egyptian Football
Federation – not the others. The letter dated 4th January 2019 allegedly is a formal notice
following “other letters whereby the Club assumedly ordered the Player to go back to Egypt
and come to the Club. However, ZAMALEK failed to produce these letters which are however
crucial. The reason is simple. These letters sent before that of 4th January 2019 do not exist.”
39. Moreover, the player pointed out that said letters “were all sent to the Player at his address
for correspondence in Egypt, by ordinary mail, and no e-mails were sent at the same time to
make sure that Mr BOUTAÏB actually read their content.”, considering that he was in France.
40. The player explained that he “only heard of the existence of the letters dated 6th January and
8th January 2020 (not 4th January 2020) when ZAMALEK’s lawyer forwarded them to his
Lawyer on 3rd February 2020 via an e-mail sent at 1:48pm.”
41. The player explained that after exchange of correspondence with the legal representative of
Zamalek, on 30 January 2020, “the Player was “fired” overnight, in violation of his rights.”
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42. In his counterclaim, the player firstly stated that Zamalek “violated its fundamental duty of
protecting the Player’s health, as established by articles 328 par. 1 and 328 par. 2 of the Swiss
Code of Obligations, by failing to organize the relevant medical exam – actions without which
the Player may not have safely exercised his profession.”
43. The player held that Zamalek did not communicate the formal notices to the player and did
not allow him to assert his rights and provide all the detailed explanations that he was entitled
to provide to Zamalek and added that under these circumstances, pursuant to art. 324 para.
1 of the SCO, Zamalek remained obliged to pay the player his salary as agreed in the
employment contract.
44. In continuation, the player highlighted how Zamalek “left the player to manage his surgery
in France on his own, only to then, when the Player started claiming his unpaid salaries and
was likely to be away from the Club for a few months, file a request with the potential to
seriously harm his career. Indeed, a player - against whom a claim with the request for
imposition of sporting sanctions is filed – is as well as far less attractive to potential new clubs
for a variety of reasons.” and therefore, the player requested compensation from Zamalek
for the damages caused by its bad faith behaviour.
45. As to the amounts due as compensation by Zamalek, the player maintained that
Zamalek terminated the contract without just cause and that the amount shall be calculated
pursuant to article 17 par. 1 of the FIFA RSTP.
46. The player explained that Zamalek shall be ordered to compensate the player in the amount
of EUR 2,439,172, detailed as follows:
-
“2.250.000,00 € as remuneration due to the Player under the existing
Employment Contract;
-
181.370,00 € representing the unpaid salary for the month of August 2019;
-
7.802,00 € representing the cost of the registration of the Employment Contract
with the Egyptian Federation which was not in the English version of the Contract
but only in the Arabic version that the Player didn’t understand;”
47. The player further explained that he is still not in possession of all elements required to
properly calculate the harm suffered by his career. “As a result of the contract with ZAMALEK,
it is prudent and reasonable to assume that the Player would have been able to sign a final
employment contract at the age of 35. His net monthly remuneration could then be divided
by 2 over a period of 1 year. Therefore, the Player would be able to receive a total net amount
of 500.000,00 €.”
48. Furthermore, the player stated that “the vexatious Claim is forcing the Player to face legal
expenses and costs, prudently estimated, at this stage in the excess of 30,000.00 €. (…) the
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Player requests to be compensated with the total amount of 530.000,00 € for the loss and
expenses suffered.”
49. Moreover, the player maintained that his image has been damaged “by press articles in which
the Club claims that the player has repeatedly refused to go to the hospitals that the Club
had booked for his surgery. (…) In light of the above, the Player requests to be compensated
with the amount of 100.000,00 € for the moral damages caused by the Club.”
50. The player further maintained that “due inter alia to its conduct and the harm caused to his
career, the Player requests that ZAMALEK is condemned to pay, in accordance with the
jurisprudence of CAS, as per damages relating to the specificity of sport, a sum equal to six
months of remuneration due in accordance with the Employment Contract, that is to say,
300.000,00 € net.”
51. Finally, he stated that the request of Zamalek “to be compensated in the amount of
4.467.738 € shall be rejected as groundless and filed in bad-faith.”
52. The player requests for relief were the following:
a. “declare the Claim groundless for lack of just cause;
b. dismiss the Claims of ZAMALEK in the merits for the reasons exposed in this Answer
& Counterclaim;
c. in any event, admit the present Counterclaim and:
c.1) order that ZAMALEK pays to the Player (i) outstanding remuneration in the total
amount of 181.370,00 € net and (ii) reimbursement of the cost of the registration of
the Employment Contract with the Egyptian Federation in the amount of 7.802,00 €
net (iii), compensation for breach of contract in the amount of 2.250.000,00 € net;
c.2) order that ZAMALEK pays to the Player an amount of 500.000.00 € as
compensation for the damages caused by the vexatious and groundless claim filed
against him;
c.3) order that ZAMALEK pays to the Player an amount of 100.000,00 € as
compensation for the moral damages caused by the Club;
c.4) order that ZAMALEK pays to the Player an amount of 300.000,00 € as damages
relating to the specificity of sport;
c.5) all amounts claimed shall be considered as net;
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c.6) order the payment of legal interest at a rate of 5% p.a. to the values due by
ZAMALEK to the Player, starting to count on the date when each of them became due
until effective payment;
d. Impose sporting sanctions on ZAMALEK banning it from registering any new players,
either nationally or internationally, for two registration periods;
e. Reject the request of ZAMALEK that the Player is restricted from playing official
matches for six months or at least for four months;
f. Order ZAMALEK to pay any legal expenses or costs faced by the Player in an amount
prudently estimated in the excess of 30.000.00 € (thirty thousand Euros);
g. Order ZAMALEK to bear any and all administrative and procedural costs, which have
already been incurred or may eventually be incurred in connection with these or future
proceedings.”
c.
Claimant / Counter-Respondent’s reply to the counterclaim
ZAMALEK’S RESPONSE TO COUNTERCLAIM
53. In its response to the player’s counterclaim, Zamalek firstly stated that it “reiterates all its
claims and allegations as already filed with the claim.”
54. Zamalek affirmed that the allegations of the player regarding the validity of the English
version of the contract “cannot be considered valid since the only version of the Contract
signed by both Parties was the Arabic version one and, therefore, it is the sole and exclusive
Employment Contract valid and binding and which has been registered with the Egyptian
Football Association (EFA)” and that the English version was only a draft.
55. In continuation, Zamalek stated that “by virtue of the (i) Player’s unjustified and unauthorized
second long absence, namely from 1 January 2020 to 30 January 2020, (ii) his silence to the
several warning notices sent by the Club and (iii) his bad faith attitude, the Claimant has been
forced to terminate the Employment Contract with just cause.”
56. Furthermore, Zamalek alleged that the player had the surgery in France on 21 February 2020
and, after the physical recovery, he immediately signed a new employment contract with the
French club Le Havre as a free agent: this news confirms the bad faith and the real will of the
player, i.e. to stay in France without authorization of his employer, gain time and postpone
the surgery in order to look for another Club with the aim to return to work in France.
57. Moreover, Zamalek pointed out that it “did not terminate the employment contract because
of the termination clause included in the Arabic Contract but rather for just cause in light of
the Player’s absence which was not authorized since the Player did not undergo the surgery,
as planned in December, without any reason.”
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58. Regarding the amounts payable to the player as per the contract, Zamalek maintained that
“the tax rate at 22,5% was amended by the Law n. 26/2020 and increased to 25% for the
high value contract. Therefore, it is undisputed that all amounts written in the Employment
Contract are GROSS, the Taxes shall be paid by the Player and deducted by the Club
(according to the Egyptian Tax Authority calculations) in order to ensure the Player receives a
paid NET amount and the due amount of taxes is withhold by the employer and paid to the
Tax Authority.”
59. Zamalek highlighted that the player never objected the payments made to him, recognizing
all amounts received with regard to the sporting season 2018/2019 and until the termination
of the contract, as well as the validity of the contractual clauses and added that it “duly paid
all taxes to the Egyptian Tax Authority for the entire first team as shown by Income Tax
Payment Receipts”.
60. Zamalek pointed out that the player “only after the termination of the Contract for just cause
by the Club, even affirms that he was the victim of fraud because he did not knew these
contractual conditions (sic!): it is a false statement since he always accepted the payments of
the Club and, as a consequence, he knew the entire content of the Contract.”
61. Zamalek further emphasized that:
“(i) the Player has received the due amount of USD 129,034 and, in fact, he never
requested it;
(ii) the registration fees, equal to 3,42% of the financial basic value of the contract must be
paid in favour of the Egyptian Football Federation each year and, in accordance with the local
Federation rules as well as article IV.1 of the Employment Contract, the practice is to share
50-50 its payment between the employer (Club) and the employee (Player) unless a different
agreement is found between the Parties and specified in writing (attached as Exhibit ZA_24
a letter issued by EFA in which it confirms that starting from the sporting season 2019/2020,
the local authority has introduced a 14% VAT on the 3% registration fees. It refers to another
football player of the Club, but it is clear that it is the same for all player-employees of
Egyptian Clubs)”.
62. Regarding the payment of the monthly salary of August 2019, Zamalek held that “the Player
was aware that he had to retire the relevant cheque (see Exhibit ZA_6, receipt 4) at the
Financial Department of the Club but, unfortunately, he failed to collect it during its working
time. In addition, the Club, in good faith, by means of its lawyer also communicated that
“However, in order to find a solution and to complete this payment, please share the banking
account on which the Player prefers to receive said payment and the Club will proceed
accordingly” (see Exhibit 30 of the Respondent’s Answer). Unfortunately, the Respondent
never reply on this request and, therefore, the cheque is still at the Club’s Financial
Department.”
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63. Zamalek further explained that “the amount indicated by the Player is not correct. More
precisely the amount relating to the month of August 2019, as correctly indicated on the
cheque, is of 153,936 EUR (one hundred fifty-three thousand nine hundred thirty-six euros),
i.e. the gross amount provided by the Contract (645,161 EUR) with the deduction of the taxes
at rate of 22,50% at that time applicable in accordance with article IV.5 of the Contract
(145,161.23 EUR), less the registration fees at rate of 1,71% (22,064.49 EUR) calculate on
the annual gross salary of 1,290,321 EUR in accordance with article IV.I of the Contract, less
the amount of 5,365.08 EUR already paid on 8 August 2019 (see Exhibit ZA_6 – receipt 2 of
the amount of 6,016.84 USD).”
64. Moreover, Zamalek affirmed that “in accordance with the above-mentioned clause IV.I of the
Contract, the registration fees must be paid in equal part by the Parties. Similar meaning of
the standard provision is included in the English version of the contract (article 4.1). Therefore,
the Respondent’s request of “reimbursement of the cost of the registration of the
Employment Contract with the Egyptian Federation in the amount of 7,802 EUR” must be
dismissed. However, it must be highlighted that article 5 on the additional provisions – which
have been agreed in writing and thus derogate the standard provision above – establishes
that the Player affords the entire amount of the registration fees to be paid to EFA and thus
the Club is entitled to deduct the entire amount of the registration fee from the salary.”
65. On the injury and surgery of the player, Zamalek held that the player, “despite was authorized
by the Club to perform the surgery in France in the month of December 2019 and the
expressly Club’s instruction to come back immediately in Egypt – no later than 1st January
2020 - to follow the medical treatment and physical recovery under the supervision of the
Club’s medical staff, decided to not perform the surgery and to stay in France without any
authorization and any formal communication to his employer.”
66. Zamalek explained that on 1 January 2020 it did not know whether the player was in Egypt
or still in Europe and, therefore, it sent to his address – where he lived together with his family
– several warning letters, namely on 4, 6, 8, 12 and 14 January 2020 (see Exhibits ZA_8,
ZA_9, ZA_10, ZA_11 e ZA_12). In these warning notices Zamalek underlined the unjustified
and not authorized player’s absences as well as his breach of the contract.
67. Zamalek pointed out that only on 16 January 2020, it received a player’s letter, by means of
his lawyer, in which he requested only the alleged outstanding salaries of the month of
August, October, November and December 2019 and January 2020, but no reference to the
unjustified absences or to the surgery was made by the player.
68. In this respect, Zamalek affirmed that “It is a clear behaviour in bad faith of the Player in
violation of the Employment Contract. As a consequence, in the case at stake, the employer
can reasonably assume that it is not in the employee’s intention to return to work in Egypt
and that his decision is final.”
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69. Zamalek added that “in support to this assumption, it must be noted that the Player only did
undergo the surgery in France on 21 February 2020, i.e. after the termination of the contract
and several months after the expected date” and pointed out that “in spite of the Player’s
allegations, at moment of the termination there were no credit of the Player versus the Club
and no overdues from the Club in his favour.”
70. Zamalek further pointed out that in light of the player’s behaviour, on 30 January 2020, it
sent to the player the termination letter for just cause of the employment contract for the
following reasons:
-
“your not authorized and reiterates absences – without any valid reasons – and your
decision to not follow the Club’s medical team instructions;
-
your attitude for not obeying to the Club’s instructions and for constantly being
unprofessional, for having displayed an uncooperative attitude;
-
your silence to the previous Club’s correspondences, your decision to not return to
the Club as requested and your decision to not put an end to your misconduct”.
71. Zamalek highlighted that only after the receipt of the termination letter on 30 January 2020
the player communicated, for the first time and by means of his lawyer, that he stayed in
France in accordance with Zamalek’s permission and that he was waiting the authorization
of Zamalek to perform the surgery there.
72. In this regard, Zamalek sustained that the player deserted the place of work for a month precisely from 1 January to 30 January 2020, despite several warning notices sent by his
employer – and violated “the Club’s instructions, has clearly breached all his contractual
obligations. These misconducts justify the termination of the Contract by his employer for just
cause.”
73. In this respect, Zamalek underlined that “on the basis of unjustified absences, the wellestablished FIFA and CAS jurisprudence established a just cause of the termination of the
Contract”.
74. As per the WhatsApp massages provided by the player “exchanged with alleged Club’s
representatives” in order to justify his absence, Zamalek objected their content as well as
emphasized as no information relevant to the surgery or his will to came back in Egypt have
been received by Zamalek and pointed out the following:
a. “There is no evidence that the numbers indicated in the document belong to the
persons referred by the Player;
b. All messages alleged sent to Mr. Amir Mortada (if true), as well as to Mr. Ahmed
Zaher (if true), have not been received by the same. In fact they remained
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unanswered (attached as Exhibit ZA_25 the witness statements of Mr. Ahmed
Zaher);
c. The messages and audio sent to “Tigana Zamalek”, that the Player mentioned as Mr.
Ismail Yousef (if true), are irrelevant and, in any case, this person is not a
Club’s representative;
d. The conversations with “Doc Osama Zamalek” (if true) are irrelevant and they did
not refer to any Club instruction. In addition, the Claimant underlines that “Doc
Osama Zamalek” is not a Club representative (attached as Exhibit_ZA_26 his witness
statements whereby he confirms to not be the person entitled to receive such kind
of communication and to have informed the Player of it over the phone);
e. The documents that the Player alleged received – maybe a training schedule – are
irrelevant in the case at stake.”
75. Furthermore, Zamalek emphasized that on 6 October 2020, the player entered into an
employment contract with the Le Havre Athletic Club, French professional football Club, for
two sporting seasons and that from its point of view, “it is clear the real will of the Player:
free himself by the Employment Contract signed with the Claimant [Zamalek] by delaying as
much as possible the surgery, go back to work in France and sign another employment
contract as free agent.”
76. In continuation, Zamalek underlined that the player allegedly came back in Egypt on 1
February 2020, i.e. two days after the notification of the termination letter by Zamalek. As a
consequence, it is clear that he could came back to Egypt immediately in the month of
January, as requested by his employer, and that there were no justified reasons nor Zamalek's
authorization to stay in France.
77. Zamalek, once more, affirmed that “the Player has breached the Employment Contract and,
hence, it terminated the Contract with just cause. As a consequence, in accordance with
article 17 of the FIFA RSTP, no compensation can be requested by the Player and no sanctions
can be imposed to the Club.”
78. Zamalek further stated that “in the hypothesis the FIFA DRC accepts the Player’s request of
compensation, in accordance with the principle of “positive interest” and the duty of
mitigation, the compensation must be reduced of the entire value of the employment
contract signed between the First and Second Respondents.” Also, it stated that the DRC
“must establish all amounts as NET in accordance with the Egyptian Tax Law and EFA
Regulations (…) less the value of the new contract signed with Le Havre AC for the period
until the end of the original contract signed with the Claimant, i.e. 30/06/2022.”
79. As per the hypothetical compensation payable to the player, Zamalek explained that the
amount “must be NET after the deduction and payment of the taxes in Egypt of 25% + 10%
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REF 20-00894
as well as of the registration fees of 3.42%. From this NET amount then the value of the
employment contract with Le Havre AC must be further deducted.”
80. Zamalek further pointed out that “Le Havre AC, i.e. the new Club of the Player, is jointly and
severally liable together with Mr. Boutaib to pay compensation for breach of the contract.”
81. In this respect, Zamalek stated that “there are no doubts, from the few information so far at
disposal, that Le Havre induced the Player to breach the Employment Contract, to free himself
by the former club and to sign the new contract on 6 October 2020.”
82. As per the compensation requested by Zamalek, it sustained that the remuneration to be
taken into consideration is the remaining value of the employment contract, i.e. EUR
2,967,738 as well as the transfer costs afforded by it to ensure the sporting services of the
player, i.e. EUR 1,500,000, plus the value of the solidarity contribution of EUR 78,947.37,
totalling to EUR 1,578,947.37.
83. Moreover, Zamalek held that as a consequence of the player’s breach of the contract, in light
of his experience in important championships, Zamalek lost the opportunity to receive a
substantial transfer fee.
84. In this respect, Zamalek stated that according to the website “Transfermarkt”,
the market value of the player is EUR 800,000. In view of this, Zamalek maintained that in
addition to the remaining value of the employment contract, it “is entitled to receive by the
Respondents jointly and severally the amount of 2,78,947.37 EUR.”
85. Zamalek requests for relief were the following:
a. “the Club Zamalek terminated the contract with just cause;
b. the Player’s counter-claim is rejected;
c. the Player and the Second Respondent shall be considered jointly and severally liable
to pay favour of Zamalek Sporting Club a total compensation of EUR 5,267,738;
d. the Player and Le Havre AC must pay an interest at rate of 5% per year on any
amount due in the favour of the Club, starting from 30 January 2020 until the date
of effective payment;
e. to sanction the Player with a six-month ban from playing in official matches or at
least four months, pursuant to article 17, paragraph 3, of FIFA RSTP;
f. to sanction Le Havre AC with a ban on registering any players both at national and
international level for two (2) consecutive registration periods, pursuant to article 17,
paragraph 4, of FIFA RSTP;
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REF 20-00894
On a subsidiary basis
g. in case the honourable DRC deems appropriate award a compensation in favour of
the Player - in the unlucky case the DRC deems to upheld the Player’s allegation on
the termination - such a compensation must be NET after the deduction and
payment of the taxes in Egypt of 25% + 10% as well as of the registration fees of
3.42% and from this NET amount then the value of the employment contract with
Le Havre AC must be further deducted;
or as an alternative
h. in case the honourable DRC deems appropriate award a compensation in favour of
the Player - in the unlucky case the DRC deems to upheld the Player’s allegation on
the termination - such a compensation must be indicated as GROSS with the Club’s
right to deduct the taxes in Egypt of 25% + 10% as well as of the registration fees
of 3.42% and from this NET amount then further deduct the value of the
employment contract with Le Havre AC;
and in any case
i.
to apply any other measures it considers necessary in the decision of the case at
stake.”
d. Intervening party’s position on the present affair
E HAVRE AC’S POSITION ON THE PRESENT AFFAIR
The French club, Le Havre AC (hereinafter: Le Havre or Intervening party), after having
summarised the fact of the present case and highlighted the financial and internal difficulties of
Zamalek during the season 2019/2020 by providing several newspaper articles as well as pointing
out the “bad faith” and “artificial manner” with which Zamalek treated the player and handled
the overall situation, explained that only in the summer of 2020, it wanted to recruit a centreforward.
86. In this respect, Le Havre, explained that it tried to recruit the player Oscar Estupinan by
sending an offer to the Portuguese club, Vitória Guimarães, on 2 October 2020, which was,
on 5 October 2020, refused by the player.
87. Le Havre AC then appointed a sports agent licensed by the French Football Federation, in
order to find a centre-forward by 31October 2020 the latest, it being specified that the
recruitment of a free agent or a joker was still possible after 5 October 2020 according to the
French Professional Football League regulations.
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REF 20-00894
88. In continuation, Le Havre explained that among other profiles, the sports agent proposed the
player, who came back from Turkey after unsuccessful negotiations with his former club Yeni
Malatya Spor Kulübü, despite the latter's offer.
89. On 5 October 2020, Le Havre made a contract offer to the player.
90. Le Havre further explained that by the end of October, the French Professional Football
League rejected the application for approval of the player's employment contract, since FIFA
had denied the ITC because of the pending claim of Zamalek against the player, which Le
Havre AC had no knowledge of.
91. Le Havre stated that it still wanted to recruit the player provided that he could be qualified
during the authorised transfer period of January 2021 and on 2 January 2021 it concluded
the contract II with the player, valid as from the date of signature until 30 June 2022,
according to which the club undertook to pay to the player a monthly salary of EUR 18,000.
92. In continuation Le Havre, questioned the admissibility of Zamalek’s claim on the basis of two
facts:
i.
That according to art. 6 para. 2 of the FIFA Procedural Rules, the power of attorney
in the name of Zamalek is signed by a person who is not clearly identified and
whose power of representation is not proven, and Le Havre requested to find that
Zamalek is not validly represented and to declare its claim inadmissible accordingly.
ii.
“In any event, the extension of this claim to Le Havre AC will be declared
inadmissible. Indeed, not only does the power of attorney not provide for such a
possibility, but also the corresponding request was made in November 2020, even
though the President, the Executive Manager, the Financial Manager and the entire
Board of Directors had been allegedly suspended by the Egyptian Ministry of Sports,
with an investigation being conducted by the Egypt's Public Prosecution relating to
"financial and other irregularities"
93. As to the termination of the contract by Zamalek, Le Havre maintained that it was without
just cause and in bad faith for the following reasons:
➢ Zamalek had authorised the player to go to France to undergo surgical operation there,
which it also expressly acknowledges in its claim and it is thus in bad faith when it wrote
"you were outside of the Country for several weeks, even without the club's
authorization" referring to the player.
Le Havre added that “if the absence of the Player has been prolonged, it is only through
the fault of Zamalek which did not cooperate with the Player”.
➢ Zamalek acted in bad faith by sending the player letters to his address in Egypt, when it
knew full well that he was in France and that he could therefore not read or reply to
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REF 20-00894
them, without even sending him a copy by the means of communication that they then
used on an almost daily-basis.
➢ Zamalek was in breach of its obligations for (i) not having paid the player's salaries and
(ii) not having cooperated with the player to fix the date of the surgery, leaving his
messages unanswered.
94. With regard to Zamalek’s request to order Le Havre to pay jointly and severally with the player
the amount of the compensation claimed, Le Havre pointed out that Zamalek did not prove
any involvement of Le Havre in the circumstances which led to the termination of the contract.
On the contrary, it was Zamalek's decision to dismiss with immediate effect the player who,
in turn, had obviously no intention to leave Zamalek.
95. In order to prove the above fact, Le Havre highlighted that the fixed salary of the player at Le
Havre is significantly lower than the one that he received at Zamalek: EUR 18,000 versus EUR
64,516.
96. In continuation, Le Havre stated that in the event the DRC “were to consider that the Contract
was terminated for just cause by Zamalek, the Chamber could not however grant Zamalek's
request, since the amount of the compensatory indemnity claimed is not calculated in
accordance with relevant case law. (…) it is necessary to calculate the average between the
fixed remuneration of the Player under the Contract and that which he receives under the
new contract concluded with Le Havre AC, i.e.: (€64,516 + €18,000) / 2 = €41,258.”
97. Le Havre added that, consequently, the compensation cannot in this respect exceed a
maximum amount of EUR 990,192 (€41,258 x 24 months).
98. Moreover, Le Havre underlined that even though Zamalek paid the Yeni Malatya
Spor Kulübü a transfer fee in the amount of EUR 1,500,000, “this cost had already been
amortised for 13 months (out of 42 months, i.e. a remainder of 29 months) when the
Contract was terminated by Zamalek, with the residual value thus amounting to (€1,500,000
/ 42) * 29 = €1,035,714.”
99. Lastly, Le Havre stated that, in any event, all of the sums due by Zamalek to the player must
be deducted from the amount of any compensation.
100.Le Havre request for relief were the following:
i.
“DECLARE the claim of Zamalek inadmissible, at least its extension against Le Havre
AC.
ii.
On the merits,
iii.
DISMISS the claims of Zamalek against the Player;
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REF 20-00894
iv.
DISMISS the claims of Zamalek against Le Havre AC;
v.
On a subsidiary basis,
vi.
DISMISS partially the claims of Zamalek.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
101.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 24 June 2020 and submitted for decision
on 14 October 2021. 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.
102.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) 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 an
employment-related dispute with an international dimension between an Egyptian club and
a French/Moroccan player, with the involvement of a French club.
103.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 Player (August 2021 edition), and
considering that the present claim was lodged on 24 June 2020, the June 2020 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
104.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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REF 20-00894
105.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
106.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 whether the contract between the
parties was terminated by the Claimant/Counter-Respondent with or without just cause.
107.In this context, the Chamber acknowledged that it its task was to determine whether – based
on the circumstances described in the case file and the documentation submitted by the
parties – the Claimant/Counter-Respondent could validly terminate the contractual
relationship with the Respondent/Counter-Claimant.
108.Entering into the substance of the matter at hand, the members of the Chamber were eager
to emphasise that only a breach or misconduct which is of a certain severity justifies the
termination of a contract. In other words, only when there are objective criteria which do not
reasonably permit to expect a continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order for an employer to ensure the employee’s fulfilment of his
contractual duties, such measures must be taken before terminating an employment contract.
A premature termination of an employment contract can only ever be an ultima ratio
measure.
109.From the information on file, the Chamber first of all observed that the Claimant/CounterRespondent is of the opinion that the Respondent/Counter-Claimant was absent without a
valid reason and/or permission from its club and that he did reply to several letters that were
sent to him.
110.The Respondent/Counter-Claimant, on the other hand, deems that the Claimant/CounterRespondent was aware of his situation as he had informed several people within the club
about it, and that he wished to be contacted by the Claimant/Counter-Respondent in order
to plan a surgery for treating the injury he suffered. What is more, the Respondent/CounterClaimant contested that he received the letters from the Claimant/Counter-Respondent, and
also pointed out that in January 2020, several salaries remained unpaid.
111.Having reviewed the aforementioned circumstances, the Chamber took note that the
communication from the Respondent/Counter-Claimant to the Claimant/CounterRespondent in the period between 18 April 2019 and 30 January 2020, in general took place
via the exchanging of WhatsApp messages, mainly initiated by the Respondent/Counter-
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REF 20-00894
Claimant. As such, the parties were allegedly not always aware of each respective
whereabouts, as for instance, the Claimant/Counter-Respondent had explicitly granted a
written authorization to the Respondent/Counter-Claimant in order to undergo the surgery
in France, however later, the Claimant/Counter-Respondent claimed not to be aware of
where the Respondent/Counter-Claimant was.
112.Moreover, the members of the noted that the Claimant/Counter-Respondent mainly
communicated to the Respondent/Counter-Respondent by means of sending letters to his
domicile in Egypt - in an attempt to locate the Respondent/Counter-Respondent and getting
information about his surgery -, although it gave him explicit permission to undergo surgery
in France.
113.At this point, the members of the Chamber deemed that the behaviour of the
Claimant/Counter-Respondent could be qualified as bad faith, since it claimed not to know
where the Respondent/Counter-Respondent was, however, on the other hand, as it should
have known that it could not reach the Respondent/Counter-Respondent on his domicile in
Egypt, as it gave him permission to undergo a surgery in France.
114.Overall, the members of the Chamber were of the firm opinion that both parties could have
used more proper ways and/or other means of communication, such as e-mails rather than
WhatsApp messages or sending letters to an address of the Respondent/Counter-Claimant in
Egypt, in order show a true intention in continuing the employment relationship in a
constructive way.
115.Moreover, the members of the Chamber finally established that it remained uncontested
between the parties that no more than two weeks before the termination of the contract on
30 January 2020, the Claimant/Counter-Respondent failed to pay at least one monthly salary
to the Respondent/Counter-Claimant.
116.Following all the aforementioned circumstances, the Chamber was of the firm opinion that
the Claimant/Counter-Respondent did, in any case, not have just cause to prematurely
terminate the employment contract with the Respondent/Counter-Claimant on 30 January
2020, since the alleged breach from the Respondent/Counter-Claimant could not legitimately
be considered as being severe enough to justify the termination of the contract, and that
there would have been more lenient measures to be taken.
117.On account of the above, the Chamber decided that the Claimant/Counter-Respondent had
no just cause to unilaterally terminate the employment relationship with the
Respondent/Counter-Claimant and, therefore, concluded that said termination – which took
place on 30 January 2020 - was made by the Claimant/Counter-Respondent without just
cause. Consequently, the Claimant/Counter-Respondent is to be held liable for the early
termination of the employment contact without just cause.
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REF 20-00894
118.Following the above line of reasoning, already at this point the members of the Chamber
decided to reject the claim lodged by the Claimant/Counter-Respondent.
ii. Consequences
119.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
Claimant/Counter-Respondent.
120.The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, is equivalent to one salary under
the contract, amounting to EUR 181,370 net according to the Respondent/Counter-Claimant
or EUR 153,936 net according to the Claimant/Counter-Respondent.
121.After having reviewed the dissenting opinions between the parties, the members of the
Chamber deemed it the most correct to award the amount of EUR 181,370 to the
Respondent/Counter-Claimant, as well as to order the Claimant/Counter-Respondent to
provide the Respondent/Counter-Claimant with the relevant tax certificate.
122.As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Claimant/Counter-Respondent is liable to pay to the
Respondent/Counter-Claimant the amounts which were outstanding under the contract at
the moment of the termination, i.e. EUR 181,370.
123.In addition, taking into consideration the Respondent/Counter-Claimant’s request as well as
the constant practice of the Chamber in this regard, the latter decided to award the
Respondent/Counter-Claimant interest at the rate of 5% p.a. on the amount of EUR 181,370
as from 1 September 2019 until the date of effective payment.
124.What is more, as to the Respondent/Counter-Claimant’s request for the reimbursement of
the cost of the registration of the employment contract with the Egyptian Football Federation,
i.e. an amount of EUR 7,802 net, the members of the Chamber noted that the contract in
this regard provides for the following clause: “The present contract shall be registered and
the Club shall pay registration fees and such fees shall be paid equally by the Club and player.”
125.In this regard, the Chamber also noted that the contract does not provide for any clause
stating that the cost of such registration must be paid on a yearly basis, as alleged by the
Claimant/Counter-Respondent and that the evidence provided by the Claimant/CounterRespondent in this respect, referred to a different player, Mr Hamdi Naguezz.
126.In view of the foregoing, the members of the Chamber decided to award the amount of EUR
7,802 net to the Respondent/Counter-Claimant, as well as 5% interest p.a. as from the date
of claim, i.e. 23 June 2020.
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REF 20-00894
127.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.
128.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.
129.As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Claimant/Counter-Respondent to the Respondent/CounterClaimant 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.
130.Bearing in mind the foregoing as well as the claim of the Respondent/Counter-Claimant, the
Chamber proceeded with the calculation of the monies payable to the Respondent/CounterClaimant 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 EUR 2,903,222 (i.e. the
residual value of the contract, 25 salary payments if EUR 64,516 each plus 2 down payments
of EUR 645,161 each) serves as the basis for the determination of the amount of
compensation for breach of contract.
131.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 a player’s general obligation to
mitigate his damages.
132.Indeed, the player found employment with Le Havre. In accordance with the pertinent
employment contract, the Respondent/Counter-Claimant was entitled to EUR 18,000 per
month (during 18 months), as well as a sign-om fee of EUR 52,000. Therefore, the Chamber
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REF 20-00894
concluded that the Respondent/Counter-Claimant mitigated his damages in the total amount
of EUR 376,000.
133.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.
134.In this respect, the DRC however concluded that the Claimant/Counter-Respondent had
effectively terminated the contract between the parties, as a result of which no additional
compensation can be awarded in the matter at hand.
135.Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Claimant/Counter-Respondent must pay
the amount of EUR 2,527,222 to the Respondent/Counter-Claimant (i.e. EUR 2,903,222
minus EUR 376,000), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
136.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 23 June 2020 until the date of effective payment.
iii. Compliance with monetary decisions
137.Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
138.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.
139.Therefore, bearing in mind the above, the DRC decided that the Claimant/CounterRespondent must pay the full amount due (including all applicable interest) to the
Respondent/Counter-Claimant within 45 days of notification of the decision, failing which, at
the request of the Respondent/Counter-Claimant, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become immediately effective on the Claimant/Counter-Respondent
in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
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REF 20-00894
140.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. 24bis par. 8 of
the Regulations.
d. Costs
141.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.
142.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.
143.Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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REF 20-00894
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Zamalek SC, is rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, Khalid Boutaib, is partially accepted.
3.
The Claimant/Counter-Respondent has to pay to the Respondent/Counter-Claimant, the
following amounts:
- EUR 181,370 as outstanding remuneration, plus 5% interest p.a. as from 1 September
2019 until the date of effective payment;
- EUR 7,802 net as outstanding remuneration, plus 5% interest p.a. as from 23 June 2020
until the date of effective payment;
- EUR 2,527,222 gross as compensation for breach of contract without just cause, plus 5%
interest p.a. as from 23 June 2020 until the date of effective payment.
▪
4.
The Claimant/Counter-Respondent is ordered to provide the Respondent/Counter-Claimant
with the relevant certificate attesting the payment of taxes to the competent authorities of
the amount of EUR 181,370 as mentioned under points IV.3. above.
5.
Any further claims of the Respondent/Counter-Claimant are rejected.
6.
The Respondent/Counter-Claimant is directed to immediately and directly inform the
Claimant/Counter-Respondent of the relevant bank account to which the Respondent must
pay the due amount.
7.
The Claimant/Counter-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).
8.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), 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 Claimant/Counter-Respondent shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid. The maximum
duration of the ban shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
9. The consequences shall only be enforced at the request of the Respondent/CounterClaimant in accordance with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the
Status and Transfer of Players.
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REF 20-00894
10. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF 20-00894
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).
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