Labour Disputes
Texto da decisão
REF. FPSD-8153
Decision of the
Dispute Resolution Chamber
passed on 11 July 2023
regarding an employment-related dispute concerning
the player Mohamed Osama Aly Darwish
COMPOSITION:
Frans DE WEGER (the Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico), member
Roy VERMEER (the Netherlands), member
CLAIMANT / COUNTER-RESPONDENT:
Mohamed Osama Aly Darwish, Palestine and Germany
Represented by Ashot Kyureghyan
RESPONDENT / COUNTER-CLAIMANT:
Haras El Hodod, Egypt
Represented by Ahmed Abbas Mohamed Elhag
INTERVENING PARTY:
TURU 1880 Düsseldorf, Germany
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I. Facts of the case
1.
The parties to the dispute are the Palestinian and German player, Mohamed Osama Aly
Darwish (hereinafter: the Player or the Claimant/Counter-Respondent), the Egyptian Club,
Haras El Hodod (hereinafter: the Club or the Respondent/Counter-Claimant) and the German
club, TURU 1880 Düsseldorf (hereinafter: the Intervening Party).
2.
On 17 August 2022, the Club sent to the Player a document called a “summary of contract
for professional player” (hereinafter: the offer).
3.
The offer contained inter alia, the following information:
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Duration of the contract: 3 seasons 2022/2023, 2023/2024 and 2024/2025.
The salary: the 1st season: USD 55,000 (including taxes), the 2nd season: USD 60,000
(including taxes) and the 3rd season: USD 65,000 (including taxes).
“Housing: in the club hotel”.
One flight ticket.
“The contract considered valid after the player passes the Medical examination”.
Bonus: from USD 250 to USD 500 “after every win”.
“The offer valid for 7 days from the day” (quoted verbatim).
4.
It is to be noted that the specimen of the offer available on file is only signed by the Club
and does not contain any designated space for the Player’s signature or expression of
acceptance.
5.
On 28 August 2022, the Player travelled from Dusseldorf (Germany) to Cairo (Egypt).
6.
On 3 September 2022, the Player and the Club allegedly signed a contract (hereinafter: the
Contract) valid for the 2022/2023 season (one season). The Player contested the validity of
this contract as he stated that he signed a blank copy.
7.
In accordance with clause 2 of the Contract, the Player was entitled to the following
amounts:
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EGP 260,000 payable on 10 October 2022;
EGP 65,625 payable on 10 November 2022;
EGP 65,625 payable on 10 December 2022;
EGP 65,625 payable on 10 January 2023;
EGP 65,625 payable on 10 February 2023;
EGP 65,625 payable on 10 March 2023;
EGP 65,625 payable on 10 April 2023;
EGP 65,625 payable on 10 May 2023;
EGP 65,625 payable on 10 June 2023;
EGP 260,000 payable on 10 July 2023.
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8.
Clause 5 of the Contract reads as follows:
“1. The employment contract may be 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 Players [RSTP].
Particular reference is made to art. 13 and 14, and art 14 bis and 17 of the [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 or Club unilaterally terminates the contract for a just cause reason the other
party will be liable to pay compensation, in accordance with the [RSTP] and the Jurisprudence
of the FIFA DRC [Dispute Resolution Chamber]. 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 [RSTP] and the Jurisprudence of the FIFA DRC. In the
event of a dispute.”
9.
Clause 4.6 of the Contract reads as follows:
“The player should bear the taxes of this contract and any fees according to the law, the club
shall deduct taxes from the player dues and transfer them to the taxes under his
responsibility.”
10. Clause 6.2 of the Contract reads as follows (the clause was handwritten):
“The two parties agreed to extend the term of the contract for one or more seasons after the
end of the contract term with the consent of both parties with a new value and financial
terms”.
11. In accordance with the information available in the Transfer Matching System (TMS), the
Egyptian 2022/2023 registration periods were from 1 September 2022 to 15 October 2022
and from 1 January 2023 until 31 January 2023.
12. On 26 September 2022, the Player sent the Club a “warning notice” indicating that the Club
terminated the Contract without just cause during the protected period and that he is
entitled to compensation in accordance with art. 17 of the RSTP. The Player stated that the
Club is in default of USD 186,885. The Player granted the Club 15 days in order to resolve
this matter amicably.
13. On 26 September 2022, the Club allegedly requested the Egyptian Football Association
(EFA) to: “take the necessary steps of contracting the Palestinian Football Association informing
them of the player's absence since 20/09/22, and informing the player to return to continue his
contract with the club”.
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14. On 7 October 2022, the Club sent a letter to Player, stating, inter alia, that:
-
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“The contents of the letter dated 26 September 2022 was not true”.
The Club informed the EFA that the Player was absent for the team training and that he
left the Player’s hotel without any written permission and that he “disappeared from the
team camp causing” the Club financial damages.
The Club granted the Player 72 hours deadline to return to the Club and to commit with
the training preparation.
15. On 9 October 2022, the Player sent the Club a “final notice of default” stating, inter alia,
that:
-
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The Club provided contradictory information.
The Club failed to provide with the Player’s contract, that he was registered prior the
Player’s notice dated 26 September 2022 and that the Club did not prove that it paid
the Player since the beginning of the employment relationship.
As to the absence of the Player, the Player stated that this information was not true as
the Club prevented him from attending the training seasons.
The Club disregarded the Player until the letter of 26 September 2022.
The Player requested with the exact date of the registration referring to art. 5 RSTP.
The request of the Club in order for the Player to return within 72 hours should be
disregarded.
The Player requested the payment of USD 186,885 as compensation granting the club
5 days to comply with it.
16. In accordance with the information available in TMS, on 11 October 2022, the Club entered
a transfer instruction (n° 595559) to engage the Player permanently.
17. On 12 October 2022, the Club sent a letter to Player, stating, inter alia, that:
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The Club was carrying out the Player’s registration.
The Player did not receive any financial due until it is confirmed by the Palestinian
Football Association (PFA) that the Player is a free player, and then he would receive a
copy of this contract from the EFA.
The Club stated that both parties have a contract, and “if the player does not attend on
the specified date, [the Club] will file a complaint against [the Player]”.
18. On 14 October 2022, the Player sent the Club a “final notice of default” contesting the Club’s
letter. The Player further “recommended” the Club to pay the full compensation in the
amount of (USD 186,885) and requested the Club to amicably settle this dispute granting a
deadline until 22 October 2022.
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19. In accordance with the information available in TMS, on 23 October 2022, the Player was
registered with the Club. It is to be noted that EFA only confirmed the registration on 23
April 2023.
20. On 23 October 2022, the Player put in default the club in the amount of USD 186,885,
granting a deadline until 7 November 2022 in order to remedy the default.
21. On 29 January 2023, the Player and the Intervening Party signed an agreement valid from
1 February 2023 until 31 May 2023. The Player was engaged as an amateur player. The
Intervening Party paid the Player EUR 250 per month as transport fees and the Player did
not receive any salary.
22. In accordance with the information provided by German Football Association, the
Intervening Party’s first men’s team is still playing in the Oberliga Niederrhein (5th division)
in the current season, and it has registered professional players on a national level in the
past three years.
II. Proceedings before FIFA
23. On 8 November 2022, the Player lodged a claim against the Club in front of FIFA and
requested compensation for breach of contract. In parallel and before being summoned
to the proceedings, the Club on 13 November 2022, filed a claim against the Player for
breach of contract.
24. On the basis of art. 21 par. 3 of the Procedural Rules Governing the Procedural Rules, the
FIFA general secretariat joined both the claim of the Player and the claim of the Club. For
the sake of good procedural order, the claim of the Club was processed as a counterclaim.
a. Position of the Claimant/Counter-Respondent
25. According to the Player:
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On 17 August 2022 the Club sent an employment offer to the Player, which was
accepted by him. Therefore, the offer was a valid contract as it contained all the
essentialia negotii.
On 28 August 2022, he arrived in Egypt and on 30 August he undergone medical
examination.
On 3 September 2022, the Club requested the Player to sign a blank contract (4 copies
in total 2 in Arabic and 2 in English) and that he would receive a copy after the Club files
those contracts, according to all provisions stated and agreed by the Parties. However,
the Club did not comply with it and refused to provide him with a copy of the contract.
On 6 September 2022, it was announced to the media that the Player was hired for 3
years.
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On 19 September 2022, the Player participated in the training seasons. On the same
date, the Club informed the Player of its decision to terminate the employment
relationship due to low performance and was requested to leave the hotel.
The Player stated that from 19 September 2022 until 26 September 2022, the Club did
not contact the Player, and he was prevented from training on 22 September 2022.
Through official media in Egypt, the Club announced that the employment relationship
was mutually terminated – which is challenged by the Player.
Following the default notice by the Player, the Club “tried to overturn and distort facts,
even contracted the Player and informed him to join the team”.
26. According to the Player the Club terminated the employment relationship without just
cause. It is to be noted that in accordance with the Player the basis of the employment
relationship between the Player and the Club was the offer.
The existence of a valid and binding contract
27. The Player argued that the offer dated 17 August 2022 contained all essentialia negotii
elements and should be considered as a valid contract. As to the signature, the Player
stated that: “The offer is signed and stamped by the Club and the Player accepted the offer by
flying to Egypt and directly training with them, which is proven by the air ticket the Club bought
for him, the proof of signing [the Contract] and his training with the Club”.
28. The Player further supported its assertation of the offer as a valid contract, as the Club did
not challenge the acceptance of the offer but also admitted it in its letter dated 12 October
2022.
Failure of the club to register the player in due course
29. The first registration period in Egypt was open from 1 September .2022 until 15 October
2022, and the Club failed to provide any information to the registration process and
considered that the International Transfer Certificate (ITC was not delivered.
30. The Player further added that in the scenario that the EFA requested the ITC to the
Palestinian Football Association, said association would have 7 days to provide with its
reply, i.e., 22 October 2022.
Bad faith of the Club in signing different employment contract and not providing the
Player with his original copy, resulting in the invalidity of the Contract
31. According to the Player the Contract shall be considered null and void due to duress (article
29 Swiss Code of Obligations -SCO - et seq.) and due to an unfair advantage (article 21 SCO),
in view of the following points:
a) The Player was in a straitened situation when signing the Contract:
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The Player only received a copy of the Contract when the Respondent attempted to file
an incomplete claim against the Player.
The Player was in an uncomfortable position from a financial and sporting perspective.
The Player was not registered.
At the time of the execution of the Contract, there was no other alternative available to
the Player than to obey the Club’s control as the Player was out of the procedure of
requesting the ITC.
The Club “did not adduce any evidence that the Player had other employment offers to
remain employed. Secondly, and more importantly, the Player was free to decide for which
club he wanted to play after his former employment contract with the previous club ended.
It is a direct and most straightforward obligation (NOT A RIGHT) of the new Club to request
the ITC of the Player”.
b) The Club exploited the straitened circumstances:
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The Club was in complete control of the ITC process.
“The Club not only acted in bad faith when obstructing the request and proper delivery of
the ITC in due time on the grounds of [the offer], but that the Club indeed exploited the
straitened circumstances of the Player in a despicable manner by forcing [the Contract]
upon him”.
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The Contract was unbalanced and that there is an obvious and clear disparity between
performance and consideration in the Contract. The Contract was in the sole interest
of the Club, the period was shortened from 3 seasons to 1 season, resulting that the
Player’s waived 2 years of employment.
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Both the procedural as well as the substantive requirements of article 21 SCO are met
and that, as a result, the Contract is invalid.
32. The duress is also proven by the fact of committing fundamental error by the Club when
concluding the Contract.
a) Existence of error
-
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The Player stated in his statement, that the Club invited the Player to its headquarters
to sign a contract, which did not correspond to the offer by its essential terms,
information that the Player was unaware of. The Club provided the Player 4 blank
contracts which the Player refused to sign; however, he was convinced that it would be
filled according to what the parties agreed.
The Club did not comply with it and refused to provide him a version of the signed
Contract.
The Player only found out of the error when he received the Contract for the first time
when the Club filed a claim.
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b) The Error is fundamental: “The existing error not only amends the essential terms of the
employment relation, particularly the remuneration of the Player, but also consequently
it is in favour of the Club anything for the benefit in return, thus causing instability and
disbalance in the sense of benefits related to the employment relations covering [the
offer] and [the Contract]”. Moreover, another substantial error is the duration of the
Contract.
Termination of the offer without just cause by the Club
33. The offer was breached on 19th of September 2022, considering that the Club did not
register the Player and the latter was informed by the Club that the employment
relationship was terminated due to performance which was not a valid reason to terminate
a contract.
34. The Player requested the following relief:
“A. To accept this claim;
B. Essentially, to find [the Contract] invalid on the grounds of article 21, 23, 24 and 31 of
SCO;
a) Find that the [the Club] terminated [the Offer] without just cause;
b) To issue a decision requiring [the Club] to:
1. Pay the Player the amount of 180,000-/ USD, as a compensation of residual value and
outstanding payables as per article 12bis and 17.1 of the FIFA RSTP, plus five percent (5%) per
annum interest rate, starting from 19 of September 2022 until its effective and entire
payment;
2. Pay the Player the amount of 20,000-/ USD, based on the specificity of sport and article
337.c (3) of SCO plus five percent (5%) per annum interest rate, starting from date in which
the FIFA decision is communicated;
3. Order [the Club] to pay [the Player] an amount of 1,000-/USD for the flight ticket
C. Alternatively, if Honourable DRC finds [the offer] invalid and/or [the Contract] valid and
rejects the request for relief, set forth in the par. 170 (a.) of the present claim on such grounds,
we humbly request from the Honourable DRC to:
a) Find that [the Club] terminated [the Contract] without just cause;
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b) To issue a decision requiring [the Club] to:
1. Pay the Player the amount of 54,347 USD, as a compensation of residual value and
outstanding payables as per article 12bis and 17.1 of the FIFA RSTP, plus five percent (5%) per
annum interest rate, starting from 19 of September 2022 until its effective and entire
payment;
2. Pay the Player the amount of 18,114-/ USD, based on the specificity of sport and article
337.c (3) of SCO plus five percent (5%) per annum interest rate, starting from date in which
the FIFA decision is communicated;
3. Order [the Club] to pay [the Player] an amount of 1,000-/USD for the flight ticket
D. To impose [the Club] a ban on registering players for two entire and consecutive
registration periods as per article 17.4 of the FIFA RSTP;
E. To order [the Club] to assume the entirety of the FIFA DRC administration and procedural
fees, if any”.
b. Position of the Respondent/Counter-Claimant
35. As to the facts, the Club argued that the offer sent on 17 August 2022 was an initial offer
that is not final on condition of attendance within a one-week period, adding that if the
Player would not attend the offer would be cancelled, and also conditional on passing the
medical examination.
36. The Club did not pursue with the signature as the Player did not respond within 7 days. On
28 August 2022, after the end of the period specified, the Club was surprised by the Player's
presence in Cairo.
37. The Club stated as follows:
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The parties signed a contract only for one season with a possibility of extension
of the Contract if agreed by both parties.
The offer was cancelled as the 7 days elapsed.
As to the Player allegation that he did not receive a copy of the Contract, the Club
rejected this argument, according to the Club he took a copy of it and not a real
copy, “because the player receives an original copy of the contract after completing
documentation with the Football Association and receiving the international card from
the Palestine Football Association which confirms his status and that he is not
associated with any other club or subject to suspension or any other penalties”.
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The Player was officially registered as a member of the team. The Club provided
with a document “Players registered to Haras el Houdoud Club for 2022/2023
season” stating that he was registered with the Club.
The Player did not receive any financial compensation as the registration process
was not yet complete.
As to the offer, the Club stated that it was void as he did attend after the specified
period. However, he was given with “another opportunity” to complete the
procedures and medical examinations.
The Club further added that (quoted verbatim):
“We would like to ask why the player and his lawyer are responding with such
behaviour? We committed to the player and gave him another chance to attend after
he disappeared without permission for 72 hours. We responded to his lawyer on
07/10/2022 (Document 9) and we explained to him the inaccuracies, assuming that
the player had told him false information. But he continued his inaccuracies and sent
further letters containing false information (Documents11, 12 and 13) and the
response to it from our side is attached (Documents 9 and 14 ). We had reason to
believe that there was an attempt at fraud or blackmail on the part of the player, and
that he might have received another offer, so he did so to evade his commitment to
the contract between us. Therefore, in order to preserve the rights of the club, we
continued the registration procedures, despite the lack of response from the Palestine
Football Association regarding the international card, which in fact arrived late on the
date 22/10/22. Now, the Egyptian League has commenced, which confirmed our
suspicions about the player and his lawyer and their irresponsible behavior and
determination to claim the financial compensation”.
38. The Club requested the following relief:
“1) That [the Player] pay an amount of 55,000 US dollars, the value of the financial
compensation for the duration of the contract, which is one year, for these actions that
have resulted in the team losing one place in the registered squad list.
2) That [the Player] pay an amount of 50,000 US dollars in moral compensation for the
defamation of the name of the club caused by false claims that the club had expelled him
from the accommodation and released him, published with his knowledge on unofficial
sites; the club did not declare this on its official website.
3) Imposing penalties on him for violating the provisions of Articles 16 and 17 of FIFA, with
the player's request to terminate the contract without just reason and with false claim, in
addition to the attempted financial extortion of the club as a result of this allegation.
4) That [the Player] pay the sum of 5,000 US dollars in legal fees.
5) That [the Player] pay 500 US dollars for the travel ticket, plus 800 US dollars for the
medical examination costs, plus 2,700 US dollars for the accommodation costs.
6) That [the Player] pay 5% financial interest on financial claims from the date of his
disappearance 25/09/22 until the date of the issuance of the decision by your honorable
selves, and taking into account the objectives of FIFA in terms of fair play and morals,
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according to the text of Article 52, Article 15 and Article 20 Paragraph 5 of the FIFA
Disciplinary Code.
7) That [the Player] pay 5,000 US dollars which is registration fee paid to the Egyptian
Football Association in order to set up and release his international card so he can join in
Egyptian Premier League”.
c. Rejoinder of the Claimant/Counter-Respondent
39. The Player rejected the statements made by the Club.
40. In particular, as to the acceptance of the offer, “the allegation that the Player did not answer
within the specified period of seven (7) days, definitely this is a false allegation and should not
take into consideration, because the Player answered, accepted, and signed [the offer] directly
when he received it”. In this respect, “if the Player did not answer the Club when it sent [the
offer] on 17 August 2022, so why did the Club buy a flight ticket to the Player?!!, the Club itself
admitted (…) that it bought a flight ticket to the Player, which means that all our allegations in
this regard are true”.
41. As to the allegation that the Player stayed at the hotel and did attend training, the Player
stated that it is not true and that the Club has not provided any evidence proving it.
42. As to the Contract, the Player stated that “the Club clearly admitted that the Player received
“NOT A REAL COPY” which in extreme proves our argumentations in this regard, that on 03
September 2022, the Player merely signed and fingerprinted in the blank contracts without
receiving the completing one, assuming that the Club would fill it according to what they agreed
by 1st contract, then gave him the original one”.
43. To support the assertion that the Player signed a blank contract, the Player provided some
photos in which it allegedly appears that the Player signed a blank contract.
44. The Player concluded that the Chamber “should consider [the Contract] null and void under
articles 21, 23, and 31of SCO, as the Player occurred in a fundamental error when he signed in
the 2nd contract, as the Club, in bad faith, did not fill [the Contract] according to what the
parties agreed on [the offer], and to consider that the 1st contract is valid, binding and should
be applicable in this case”.
45. As to the allegations related to the Player’s absence, in particular to the alleged letter sent
to EFA, the Player stated that said correspondence was created, otherwise, why the Player
did not receive said information in the communications prior to the claim filed in FIFA. The
Player indicated that “the Club failed to produce any evidence proving that the alleged
document sent to EFA or PFA or even to the Player himself, and thus, the alleged document
should be considered null and void and not taken into consideration”.
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46. Additionally, the Player stated that he was in the hotel until 25 September 2022, which
contradicted what was stated by the Club indicating that he was absent as from 20
September 2022.
47. As to the allegation related to non-paying salaries: the Club committed a serious breach
when it refused to pay the Player any salaries since he entered into a binding and valid
employment contract on 17 August 2022.
48. As to the allegations related to registration, the Player requested evidence of the
registration throughout all the correspondence to the Club however, it failed to provide
any, even more, the Club did not provide the Player any report from FIFA TMS about the
history of the transfer.
49. As to the allegations related to the moral compensation and the allegations related to the
media, the Player stated that the claim of the Club is unjustified, groundless, full of
distortion of facts and is a subject to be rejected in its entirety.
50. The Player requested the following relief:
“In view of all the foregoing, and taking into account the clear balance of probabilities of facts
and evidence in favour of the Player on behalf of the Player we herein request the FIFA Dispute
Resolution Chamber to issue a decision of rejecting the claim of the Club and accept our filed
claim”.
d. Final comments of the Respondent/Counter-Claimant
51. In its reply the Club stated the following:
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The offer expired on 24 August 2022 and it was not valid after that period.
The contract provided to the Player a standard contract issued by EFA.
The Club and the Player signed 8 copies in total. “The full copies are accepted after
being reviewed by the Egyptian Football Association who ensure that the club put a copy
of the contract on the registration system before addressing the national federation
affiliated with the player (the Palestinian Football Association). After the conclusion of
the Contract, the Club would receive a copy of the contract, and the Player would
receive a copy from the EFA.
As to the blank contract, the club stated that “it is illogical and even impossible for a
player with such specifications as a professional to claim that he signed empty contracts
and put his fingerprint and sign eight copies of an empty contract in Arabic and English,
and also without consulting his lawyer or agent since he is a professional”.
As to the termination announced in all media, the Club stated that “the club is only
responsible for its official website and that the statements published and submitted by
the player have nothing to do with the club’s official website”.
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52. The request for relief was slightly amended:
“1) That [the Player] pay an amount of 55,000 US dollars, the value of the financial
compensation for the duration of the contract, which is one year, for these actions that have
resulted in the team losing one place in the registered squad list, plus 5% annual interest
beginning from 3rd September 2022 until payment is completed
2) That [the Player] pay an amount of 50,000 US dollars in moral compensation for the
defamation of the name of the club caused by false claims that the club had expelled him
from the accommodation and released him, published with his knowledge on unofficial sites;
the club did not declare this on its official website, plus 5% annual interest beginning from 3rd
September 2022 until payment is completed.
3) Imposing penalties on him for violating the provisions of Articles 16 and 17 of FIFA, with
the player’s request to terminate the contract without just reason and with false claim, in
addition to the attempted financial extortion of the club as a result of this allegation.
4) That [the Player] pay the sum of 5,000 US dollars in lawyer fees.
5) That [the Player] pay 500 US dollars for the travel ticket, plus 800 US dollars for the medical
examination costs, plus 2,700 US dollars for the accommodation costs.
6) That [the Player] pay 5% financial interest on financial claims from the date of his
disappearance 25/09/22 until the date of the issuance of the decision by your honorable
selves, and taking into account the objectives of FIFA in terms of fair play and morals,
according to the text of Article 52, Article 15 and Article 20 Paragraph 5 of the FIFA Disciplinary
Code.
7) That [the Player] pay 5,000 US dollars which is registration fee paid to the Egyptian
Football Association in order to set up and release his international card so he can join in
Egyptian Premier League”.
e. Position of the Intervening Party
53. The Intervening Party stated the following (quoted verbatim):
“We as a club take a stand on our player Mohamed Darwish.
We first heard from the player on 21.01.2023 that another coach recommended him to our
coach. We as a club or those responsible had no contact with the player before 23.01.2023
and also heard from him for the first time on 21.01.2023.
We had no influence on what happened to him in Egypt. We didn’t persuade the player to
come to us from another club. Unfortunately we don’t believe that we could have let a player
give up 5000 dollars to play for us for 250 euros”.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
55. 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 8 November 2022 and
submitted for decision on 11 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.
56. 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. 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 Palestine and Germany and a club from Egypt, with the
involvement of a German club.
57. 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 8 November 2022 and the counterclaim on 13 November 2022, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
58. For the sake of completeness, the Chamber remarked that the Player referred to Swiss law
to support his argumentation. In this respect, the Chamber wished to recall that when
deciding a dispute before the Dispute Resolution Chamber, FIFA’s regulations prevail over
any national law that the parties might have chosen. In this regard, the Chamber
emphasised that the main objective of the FIFA regulations is to create a standard set of
rules to which all the actors within the football community are subject to and can rely on.
This objective would not be achievable if the Chamber would have to apply the national
law of a specific party on every dispute brought to it. By the same token, the Chamber
wished to point out that it is in the interest of football that the cases are based on uniform
criteria rather than on provisions of national law that may vary considerable from country
to country. Therefore, the Chamber deemed that it is not appropriate to apply the
principles of a particular national law but rather the Regulations, general principles of law
and, where existing, the Chamber’s well-established jurisprudence.
b. Burden of proof
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59. 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 TMS.
c. Merits of the dispute
60. 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
61. 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 (i) which is the valid and
biding contract; (ii) the termination of the contract and (iii) the just cause of the termination.
62. In this context, the Chamber acknowledged that it its task was to determine the following:
a. Was the offer the valid and binding contract?
b. Was the Contract the valid and binding contract?
c. When was the Contract terminated and was there just cause to do so?
Was the offer a valid and binding contract?
63. According to the Claimant, the offer dated 17 August 2022 is the valid contract as it stated
all essentialia negotii elements and it was accepted by the Player. On the contrary, the Club
stated that the Player did not accept the offer in time and therefore, the offer was void.
According to the Club, the Player “appeared” at the Club’s premises on 28 August 2022.
64. In accordance with the well-established jurisprudence of the Chamber, in order for an
employment contract to be considered as valid and binding, apart from the signature of
both the employer and the employee (or the corresponding proof of consent of both
parties), it should contain the essentialia negotii of an employment contract, such as the
parties to the contract and their role, the duration of the employment relationship and the
remuneration payable by the employer to the employee.
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65. In view of the foregoing, the Chamber noted that (i) the offer indicated a validity of 7 days
i.e., 24 August 2022; (ii) the offer was subject to conditions i.e., the player should pass
medical examinations; and (iii) the Player argued that he accepted the offer on 22 August
2022, however no evidence of the acceptance was provided.
66. Considering the above, the Chamber concluded that the offer was not accepted within 7
days as the player did not meet his burden of proof to demonstrate that he did so.
Therefore, the DRC decided that the offer was not the basis of the parties’ employment
relationship. Accordingly, the Chamber found that the Player’s argumentation on this point
is rejected.
Was the Contract a valid and binding contract?
67. As to the Contract dated 3 September 2022, the Player stated that (a) he signed a blank
copy, (b) he did not receive a copy of such Contract, and (c) he only received it when the
proceedings at FIFA started. Therefore, the Player stated that the Contract shall be
considered null and void due to duress and due to an unfair advantage and supported this
in the Swiss Code of Obligations. On the contrary, the Club stated that the Contract was
signed by both parties and therefore, this is the valid contract.
68. As a preliminary remark, the Chamber recalled that Swiss Law is not applicable to these
proceedings. Subsequently, the Chamber wished to point out that since both parties
acknowledged that they were under an employment relationship, stating that it was invalid
would be contradictory. Therefore, the Chamber analysed whether the Contract was valid
and binding to the parties.
69. In view of the foregoing, the Chamber analysed the evidence presented by the Player in
order to determine whether the Player signed a blank document and whether the media
can corroborate the Player’s version.
70. The Chamber concluded that the Player did not sufficiently prove that he signed a blank
copy, considering that (i) the photos provided by the Player cannot determine the exact
moment of the picture or that he was forced to sign it; (ii) the media articles report cannot
guarantee the real terms of a contract considering that it is not a direct source of the Club
and (iii) even if he did sign a blank document, this does not free his of the consequences of
such lack of diligence.
71. In view of the foregoing the Chamber concluded that the Contract was valid and binding to
the parties.
When was the Contract terminated and is there just cause to do so?
72. The Player stated that he was orally informed by the Club on 19 September 2022 that the
employment relationship was terminated by the Club and based on the media
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REF. FPSD-8153
communications the Player was aware about the termination of the employment
relationship. Moreover, the Player stated that he was never registered and that he was
never paid. On the other hand, the Club stated that the Player disappeared from the Club’s
premises and the Club requested him to return. The Club further indicated that it started
the proceedings for registration, and it did not pay the Player’s salary as the registration
was still on process. The club requested compensation.
73. From the arguments of the parties and the documentation on file, the Chamber was able
to establish that:
-
The Player considered that the Contract was terminated on 19 September 2022, after
the Club orally informed him about the termination. However, there is not any written
confirmation by the Club that corroborates this assertion.
-
On 26 September 2022, there is media article reports indicating that the Contract was
terminated between the Player and the Club by mutual consent. On this point, the Club
stated that it is not responsible of the information that appears in the media and it is
only responsible of the information that appears it is own website.
-
On 26 September 2022, the Player stated that the Club terminated the contract without
just cause.
-
On 7 October 2022, the Club denied the termination and requested him to return within
72 hours.
-
On 9 October 2022, the Player rejected the letter of the Club and confirmed his position.
74. In view of the foregoing, the Chamber concluded that the Contract was terminated de facto
by the Player on 26 September 2022, in which he communicated to the Club that the
contract was terminated by the Club.
75. With regards to the just cause, the Chamber first recalled its long-standing jurisprudence,
according to which only a breach or misconduct which is of a certain severity justifies the
termination of a contract without prior warning. In other words, only when there are
objective criteria which do not reasonably permit to expect the 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
assure 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 be an ultima ratio.
76. The Chamber noted that the Player was not able to corroborate that (i) the Club terminated
the contract due to performance; (ii) the Club prevented him from training; (iii) at the
moment of termination September salary was not yet due - in fact, according to the
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REF. FPSD-8153
Contract, the Chamber remarked that the first instalments was to be paid on 10 October
2022 only; and (iv) the Player did not request any clarification regarding its contractual
situation and directly claimed compensation.
77. The Chamber further noted that the registration period in Egypt was still open when the
Contract was terminated, and the Club requested the registration of the Player in TMS on
11 October 2022.
78. Based on the foregoing, the Chamber concluded that Player had not provided a valid
justification for the premature termination of the contract and must therefore be held
liable for this breach without just cause.
ii. Consequences
79. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Player.
80. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player was EGP 225,333.33 (pro rata for
26 days). The Chamber also observed that no payment of the Player’s salary was provided
by the Club.
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., EGP 225,333.33.
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 Claimant interest at the rate
of 5% p.a. on the outstanding amount as from 11 October 2022 until the date of effective
payment.
83. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Club by the Player in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the Player under the existing
Contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, the fees and expenses paid or incurred by the former club
(amortised over the term of the contract) and depending on whether the contractual
breach falls within the protected period.
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REF. FPSD-8153
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 Player to the Club 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 Club, the Chamber proceeded
with the calculation of the monies payable to the Player under the terms of the Contract
until its term. Consequently, the Chamber concluded that the amount of EGP 819,666.67
serves as the basis for the determination of the amount of compensation for breach of
contract.
87. In continuation, the Chamber verified whether the Player had signed an employment
contract with another club during the relevant period of time. According to the constant
practice of the Chamber as well as art. 17 par. 1 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 due by a Player to his former club. In
particular, the Chamber explained that its standard practice is to calculate the average
between the player’s remuneration with his former club and his remuneration with the
new club, for the exact same period of time comprised between the early termination of
the employment contract with the old club and the original expiry date of such contract. In
case substantial evidence thereof is provided by the club, the Chamber might additionally
grant the damaged club the non-amortised transfer fee paid for the player in breach and/or
the actual costs incurred by the damaged club in order to replace the leaving player.
88. Indeed, the Player found a new club. In accordance with information at the disposal of the
Chamber however, the player did not have a salary with the Intervening Party.
89. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Player must pay the amount of EGP
409,833.33 to the Club, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
90. Moreover, and taking into consideration the club’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the club interest on said
compensation at the rate of 5% p.a. as of 26 September 2022 until the date of effective
payment.
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REF. FPSD-8153
91. Lastly, the Chamber noted that the Intervening Party is not a purely amateur club in
accordance with the information provided by the German Football Association in which it
was indicated that the Intervening Party registered professional players at a national level.
The Chamber decided that, in accordance with art. 17 par. 2 of the Regulations, TURU 1880
Düsseldorf shall be jointly and severally liable for the payment of the aforementioned
amount of compensation.
iii. Compliance with monetary decisions
92.
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.
93. 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.
-
against players, the consequence of the failure to pay the relevant amounts in due time
shall consist of a restriction on playing in official matches up until the due amounts are
paid. The overall maximum duration of the restriction shall be of up to six months.
94. Therefore, bearing in mind the above, the DRC decided that the Respondent/CounterClaimant and the Intervening Party must pay the full amount due (including all applicable
interest) to the Claimant/Counter-Respondent within 45 days of notification of the decision,
failing which, at the request of the Claimant/Counter-Respondent, 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/Counter-Claimant in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
95. The Respondent/Counter-Claimant and the Intervening Party shall make full payment
(including all applicable interest) to the bank account provided by the Claimant/CounterRespondent in the Bank Account Registration Form, which is attached to the present
decision.
96. 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.
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REF. FPSD-8153
97. Equally, bearing in mind the above, the Chamber 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 creditor, a restriction on playing in official matches for the maximum
duration of six months shall become immediately effective on the player in accordance
with art. 24 par. 2, 4, and 7 of the Regulations.
98. The Claimant/Counter-Respondent shall make full payment (including all applicable
interest) to the bank account provided by the Respondent/Counter-Claimant in the Bank
Account Registration Form, which is attached to the present decision.
99. The Chamber 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
100. 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.
101. 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.
102. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8153
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Mohamed Osama Aly Darwish, is partially
accepted.
2.
The Respondent/Counter-Claimant, Haras El Hodod, must pay to the Claimant/CounterRespondent the following amount:
- EGP 225,333.33 as outstanding remuneration plus 5% interest p.a. as from 11 October
2022 until the date of effective payment.
3.
The counterclaim of the Respondent/Counter-Claimant, is partially accepted.
4.
The Claimant/Counter-Respondent, must pay to the Respondent/Counter-Claimant the
following amount:
- EGP 409,833.33 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 26 September 2022 until the date of effective payment.
5.
The intervening party, TURU 1880 Düsseldorf, is jointly and severally liable for the payment
of the aforementioned compensation.
6.
Any further claims of the Claimant/Counter-Respondent and the Respondent/CounterClaimant are rejected.
7.
Full payment (including all applicable interest) shall be made to the bank accounts indicated
in the enclosed Bank Account Registration Forms.
8.
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:
On the Respondent/Counter-Claimant:
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.
On the Claimant / Counter-Respondent:
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REF. FPSD-8153
1. The Claimant/ Counter-Respondent shall be restricted on any football-related activity up
until the due amounts are paid. The overall maximum duration of the restriction shall
be of up to six months.
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 six months.
On the Intervening Party:
1. The Intervening Party 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 respective creditor in
accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and
Transfer of Players.
10. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-8153
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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