Labour Disputes
Texto da decisão
REF. FPSD-10961
Decision of the
Dispute Resolution Chamber
passed on 12 January 2024
regarding an employment-related dispute concerning
the player Firas Chaouat
COMPOSITION:
Lívia SILVA KÄGI (Brazil and Switzerland), Deputy Chairwoman
Gonzalo DE MEDINILLA (Spain), member
Alejandro ATILIO TARABORELLI (Argentina), member
CLAIMANT / COUNTER-RESPONDENT:
Firas Chaouat, Tunisia
Represented by Ali Abbes and Mohamed Rokbani
RESPONDENT / COUNTER-CLAIMANT:
Ismaily SC, Egypt
INTERVENING PARTY
Muharraq SC, Bahrain
pg. 2
REF. FPSD-10961
I. Facts of the case
1.
The parties to the present dispute are:
-
The Tunisian player, Firas Chaouat, born on 8 March 1996 (hereinafter: the
Claimant/Counter-Respondent or the player).
-
The Egyptian club, Ismaily SC (hereinafter: the Respondent/Counter-Claimant or the
club).
-
The Bahraini club, Muharraq SC (hereinafter: the Intervening Party).
2.
On 22 November 2022, the player and the club concluded an employment contract
valid as from the season 2022/2023 until the season 2024/2025 (hereinafter: the
contract).
3.
It is to be noted that in these proceedings the player provided an English version of the
contract which appears to be a non-official translation. The English version provided by
the club in turn, appears to be signed by the player and it is not contested by him.
Moreover, the contract that is attached in the Transfer Matching System (TMS) is in
Arabic only.
4.
In accordance with clause 2 of the contract:
Contract provided by the club:
The club undertook to pay the player
total gross amount of USD 999,900
payable as follows:
Contract provided by the player:
The club undertook to pay the player total
of USD 999,999 to be paid as follows:
Season 2022/2023: USD 300,000:
Season 2022/2023: USD 300,000:
-
USD 150,000, payable on 20 October
2022;
-
USD 37,500, payable on 31 January
2023;
-
-
USD 37,500, payable on 30 April
2023;
USD 75,000, payable on 30 August
2023.
-
USD 150,000, payable on 20 October
2022;
-
USD 37,500, payable on 31 January
2023;
-
USD 37,500, payable on 30 April 2023;
-
USD 75,000, payable on 30 August
2023.
Season 2023/2024: USD 333,333:
pg. 3
REF. FPSD-10961
Season 2023/2024: USD 333,300:
-
USD 83,325, payable
September 2023;
on
-
USD
83,325,
payable
September 2023;
on
22
-
USD 83,325, payable 31 January 2024;
22
-
USD 83,325, payable 31 January
2024;
-
USD 83,325, payable on 30 April 2024;
and
-
USD 83,325, payable on 30 April
2024; and
-
USD 83,325, payable 30 August 2024.
Season 2024/2025: USD 333,666:
-
USD 83,325, payable 30 August 2024.
-
USD
91,650,
payable
September 2024;
Season 2024/2025: USD 366,600:
on
22
-
USD 91,650, payable
September 2024;
22
-
USD 91,650, payable on 31 January
2025;
-
USD 91,650, payable on 31 January
2025;
-
USD 91,650, payable on 30 April 2025;
-
USD 91,650, payable on 30 August
2025.
on
-
USD 91,650, payable on 30 April
2025;
-
USD 91,650, payable on 30 August
2025.
5.
Clause 4.3. and 4.6 of the contract reads as follows:
Contract provided by the club:
“4.3 If the player is not from Egypt and does
not understand Arabic the employment
contract shall be concluded in Arabic and
English. Of the Arabic and English versions of
the contract differ, the English version is the
authoritative version”
“4.6 The player should bear the taxes of this
contract and other remuneration according
to the law, the club shall deduct taxes from the
player dues and transfer them to the taxes
under his responsibility.”
6.
Contract provided by the player:
“4.3. If the player is foreigner the contract
must be written in Arabic and English and in
case of differences the English version will be
applied.”
“4.6 The player shall pay all taxes owed by him
for this contract and any other qualitative
rewards according to the law. It shall be
deducted by the club from the player's
entitlements and to be given to Tax Authority
under his liability.”
Clause 5 of the contract reads as follows:
pg. 4
REF. FPSD-10961
Contract provided by the club:
“1. The employment contract
terminated by mutual agreement.
Contract provided by the player:
maybe “1. Both parties can terminate the contract
amicably.
2. The Player or Club cannot unilaterally
terminate the contract unless the right to
terminate the contract is stipulated in the FIFA
Regulations on the Status and Transfer of
Player (“FIFA RSTP”). Particular reference is
made to art. 13, art 14, and art q4 bis and 17
of the FIFA RSTP, which state that a party may
terminate a contract where there is just cause
If there is just cause, the contract may be
terminated at any time, even during the
course of a season.
2. No party can terminate the contract
unilaterally except the case of articles 13-1414 bis- 17 FIFA RSTP in existence of just cause.
3. The damaged party in case of premature
termination for just cause can request a
compensation according to FIFA RSTP and
RDC.”
3. If the Player of Club unilaterally terminates
the contract for a just cause reason the other
party will be liable to pay compensation, in
accordance with the FIFA RSTP and the
jurisprudence of the FIFA DRC. Likewise if the
Player or Club unilaterally terminates the
contract without just cause the party in
breach will be liable to pay compensation, in
accordance with the FIFA RSTP and the
jurisprudence of the FIFA DRC. In the event of
a dispute”.
7.
Clause 6 of the contract reads as follows (the content of this clause is handwritten):
Contract provided by the club:
“Additional Terms
The player has the right to an amount
of $ 15000 (fifteen thousand US Dollars) net
when joining the Tunisian national team with
his participation in two consecutive official
matches for actual participation.
The player shall receive an amount of
L.E. 7000 (seven thousand Egyptian pounds)
per month for accommodation.
Contract provided by the player:
“1- The player is entitled to receive 15000 USD
Net as bonus in case of effective and
successive participation with his national
team.
2- The player is intitled to receive a monthly
bonus 7000 Livres for accommodation.
3- The player has the right to receive one
round trip flight ticket.
pg. 5
REF. FPSD-10961
The player has the right The player
has two air tickets round trip per year.
The player has the right to receive
40000 (forty thousand US Dollars) net bonus
upon signing.
In case the player score (8) eight
goals, he will receive a bonus of 10000$. He
also entitled to another amount of 10000$
net if he reached 15 goals achieved in
Egyptian league.
The player has the right to an amount
of $25000 (twenty-five thousand US Dollars)
net when he actually participated in (17)
matches. In the event he reaches (28) actual
participation matches he has the right to
(25%) the value of his contract for the entire
season will be paid in full according to the
club regulation with deduction of an amount
of $ 15000 in the same item for his
participations in. 21 matches.
The player has the right to terminate
his contract after the end of the first season
of that contract after paying a penalty clause
of amount 1250000 (only one million two
hundred fifty thousand US dollars) for
Ismaily club.
The player has the right to terminate
his contract after the end of the second
season of that contract after paying a
penalty clause of amount 1250000 (only one
million two hundred fifty thousand US
Dollars) for Ismaily club.
4- The player is intitled to receive 40000 USD
Net as sign-on fee.
5- The player is intitled to receive 10000 USD
Net in case of scoring 8 Goals and 10000 USD
Net more in case of scoring 15 goals.
6- The player in intitled to receive an amount
of 25000 USD Net in case of effective
participation in 17 Matches and in case of
participation in 28 Matches he will receive
25% of the contractual value minus 10000
USD.
7- The player has the right to terminate the
contract after the end of the first season by
paying one million two hundred fifty thousand
USD (1250000 USD)
8- The player has the right to terminate the
contract after the end of the second season by
paying one million two hundred fifty thousand
USD (1250000 USD)
9- The player is intitled to receive 15% of the
future transfer fee.
[…]
11- The player can request the value of the
flight ticket.
12- The player respects all the provisions of
the financial internal regulation of the club
and the internal disciplinary regulation which
are considered as part of this contract and by
his signature the player attests that he has
received a copy and is engaged to respect it.”
The player has the right to the value
(15%) of his sole contract from Ismaily Club.
[…]
pg. 6
REF. FPSD-10961
The player shall received a round trip
ticket for each season after the approval of
Ismaily SC.”
The player acknowledges that he has
read all terms of the financial and
administrative regulations for the first team
football which is an integral part of this
contract and acknowledgement from him
that he has received a copy of that
regulation: he also acknowledges that
comply with all the obligations and penalties
stated in this regulation.
8.
In accordance with the TMS, the Egyptian football season 2024/2025 ends on 15 June
2025.
9.
On 4 January 2023, the player put the club in default and requested payment of USD
180,000 corresponding to remaining amount of the sign-on bonus and the outstanding
remuneration; setting a 15-day time limit in order to remedy the default.
10. On 6 February 2023, the player signed a document called “acknowledgement &
commitment” in which the player acknowledged the following (quoted verbatim):
“- Acknowledge that I have received an amount of $60000 (sixty thousand US dollars)
from [the club] as part of my agreed dues in my contract with the club on 1/10/2022.
- [The player’s] signature on this acknowledgement is considered a final waiver
irrevocable in the future – of the warning sent from me on 4/1/2023 by my lawyer
regarding my demand for the club to pay all my dues mentioned in the contract.
- [The player] acknowledge[s] that [the player has] no right to terminate the contract
concluded between me and Ismaily Club unless the club is once again late in paying
the remaining of [the player’s] dues on the dates agreed upon with the management,
With all the necessary legal procedures for that.
- [The player] also undertakes to notify FIFA with a copy of this acknowledgement to
end this dispute in a friendly way between [the player] and [the club].
- [The player] also undertakes to notify FIFA with a copy of this acknowledgement to
end this dispute in a friendly way between [the player] and [the club]”.
pg. 7
REF. FPSD-10961
11. On 9 June 2023, the player put the club in default and requested payment of USD 170,000
corresponding to outstanding remuneration; setting a 15-day time limit in order to
remedy the default.
12. On 24 June 2023, it stood undisputed that the club sent a letter to the player in reply to
his notice, however the copy of said letter was not provided by any of the parties in these
proceedings.
13. On 25 June 2023, the player sent a termination notice as the outstanding remuneration
requested allegedly remained unpaid. In addition, the player mentioned in his letter that
the club “showed a high level of bad faith by sending a letter on the last day at 11:59 PM (one
minute before the end of the deadline) with a false, strange and baseless content.”
14. On the same date, 25 June 2023, the club sent a letter to the player, indicating that the
club did not breach its contractual obligations. In particular, the club indicated that:
-
From the amount of USD 300,000 corresponding to the first year, the club
withheld USD 75,000 and the net amount due to the player was USD 265,000.
-
It made the following payments (quoted verbatim):
“1. [The club] made a payment of $9,375 (nine thousand three hundred
seventy-five dollars) through Check No. 5248211176 dated September
22,2022.
2. [The club] made a payment of$520.82 (five hundred twenty dollars and
eighty-two cents) through Check No. 524821 1183 dated September 12 2022.
3. [The club] made a payment of $30,000 (thirty thousand dollars) through
Check No 0090000244124 dated February 6, 2023.
4. [The club] made a payment of$30,000 (thirty thousand dollars) through
Check No. 0090000244185 dated February'13, 2023.
5. [The club] made a payment of $15,000 (fifteen thousand dollars) through
Check No 0090000244245 dated March 5, 2023.
6. [The club] made a payment of $13,247 (thirteen thousand two hundred
forty-seven dollars) through Check No. 527 457 47 4 dated May 22, 2023.
7. [The club] made a payment of $1,892.56 (one thousand eight hundred
ninety-two dollars and fifty-six cents) through Check No. 527457484 dated May
24,2023.”
pg. 8
REF. FPSD-10961
-
It made the following deductions (quoted verbatim):
“Warning for the match against Al-Masry Club, amounting to $81.63 (eightyone dollars and sixty-three cents), dated April 20, 2023.
Warning for the match against Al-Zamalek Club, amounting to $81.63 (eightyone dollars and sixty-three cents), dated May 13, 2023.
Warning for the match against Haras El-Hodood Club, amounting to $81.63
(eighty-one dollars and sixty-three cents), dated May 21, 2023.
4. Warning for the match against Ceramica Cleopatra Club, amounting to
$8'1.63 (eighty-one dollars and sixty three cents), dated December 8, 2022.
A deduction of 10% from the value of players' contracts who participated in
the match against Ghazl El-Mahalla Club, as per the decision of the Board of
Directors nurnbered (3) dated February 28, 2023, totaling $35,333 (thirty-five
thousand, three hundred thirty-three do lars).
- A deduction of 10% from the value of contracts for players who abstained
from the team's training on May 5 2023, totaling $35,333 (thirty-five thousand,
three hundred thirty-three dollars).
- A deduction of 20% from players' contracts related to the match against AlNajoom Club in the Egypt Cup, totaling $70,666 (Seventy thousand, six
hundred sixty-six dollars).
- An amount of $31,799.97 (thirty-one thousand, seven hundred ninety-nine
dollars and ninety-seven cents) represents the value of development resource
fees pa d to the Egyptian Football Association.”
- In view of the above, the club concluded that it paid the player a total amount of USD
173,458.49 and consequently, the club rejected the unilateral termination of the player.
15. On 13 July 2023, the player signed an employment contract with the Intervening Party
valid as from 1 August 2023 until 31 May 2024. The player was entitled to the following
amounts/benefits (quoted verbatim):
“1- Sign-on fee of 30000 USD
2- Monthly salary of 14000 USD
3- Accommodation 550 Dinars of Bahrain / month
pg. 9
REF. FPSD-10961
4- Bonus equal to one salary in case on winning one of the official competitions
5-Bonus equal to one salary in case of finishing the season as top scorer.”
16. On 22 July 2023, the club sent a letter to the Egyptian Football Association (EFA) in which
it informed that the player sent a default notice subject to terminate the contract, that the
player left the club’s premises, and that the player concluded a new contract with the
Intervening Party and requested EFA to take all the necessary measures and to inform
FIFA about the cited circumstances.
II. Proceedings before FIFA
17. On 18 July 2023, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
18. The player filed a claim against the club for breach of contract. In his claim, the player
argued that from the beginning of the contract the club failed to comply with its contractual
obligations and that the club acted in bad faith by issuing him with two bank cheques,
which bounced upon the player’s attempt to cash them. To support this assertion, the
player provided a copy of these cheques as well as a bank document indicating the reason
for the cheques’ return.
19. The player also emphasized that following the first formal notice and his letter dated 6
February 2023, the club again provided two bank checks which were returned due to a lack
of funds. To support this assertion, the player provided a copy of the said cheques together
with a document from the relevant bank indicating the reason for the return. In view of the
above, the player stated that the club had not paid his outstanding remuneration in the
amount of USD 170,000.
20. Accordingly, the player indicated that he terminated his contract with just cause in
accordance with the art. 14bis of the Regulations on the Status and Transfer of Players
(RSTP), considering that the remuneration owed by the club corresponded to more than
two monthly salaries, that he had put the club in default and given it 15 days to fulfil its
obligations, and that the club failed to pay the amounts requested within the deadline
granted. In view of the foregoing, the player requested compensation in accordance with
art. 17 of the RSTP.
21. As to the compensation and in addition to request the residual value of the contract, the
player stated that:
pg. 10
REF. FPSD-10961
“we draw the panel’s attention that the player has received only 42% from his dues
until the termination and has suffered a lot from the bad faith of the respondent who
gave him 4 bank checks without fund.
Due to the above special circumstances and the severe breach of the club who let its
player without regular resources, the Additional Compensation should be increased
to a maximum six-monthly salary i.e. one hundred fifty thousand dollars (150000
USD).”
22. As to the overdue payables, the player requested the following amounts:
-
USD 95,000 remaining amount of the first instalment due on 20 October 2022.
-
USD 37,500 as the second instalment due on 31 January 2023.
-
USD 37,500 as the third instalment due on 30 April 2023.
-
USD 25,000 for his participation in more than 18 matches.
-
USD 10,000 for scoring 8 goals.
23. The player requested the following relief:
“1. The player Firas Chaouat respectfully requests the FIFA Dispute Resolution
Chamber to:
(i)
determine that player had just cause to terminate the Employment contract
signed on 22 September 2022.
(ii)
order [the club] to pay the total amount of nine hundred twenty four thousand
nine hundred dollars (924900 USD) as compensation for breach of the
contract plus 5% p.a. as from the date of notification of 25 June 2023 until the
effective payment;
(iii)
order [the club] to pay the following amounts as an overdue payable:
* USD 95000 as remaining amount of the first installment due on 22/10/2022 plus 5%
p.a. as from 22/10/2022 until the date of effective payment.
* USD 37500 as the second installment due on 31/01/2023 plus 5% p.a. as from
31/01/2023 until the date of effective payment.
* USD 37500 as the third installment due on 30/04/2023 plus 5% p.a. as from
30/04/2023 until the date of effective payment.
pg. 11
REF. FPSD-10961
* USD 25000 for his participation in more than 18 matches. plus 5% p.a. as from
25/06/2023 until the date of effective payment.
* USD 10000 for scoring 8 goals plus 5% p.a. as from 25/06/2023 until the date of
effective payment.
(v) Impose any sanction to the Club as considered appropriate”
b. Position of the club and counterclaim
24. In its reply, the club requested FIFA to reject the player’s claim and filed a counterclaim.
The club stated that it did not breach any financial obligations, that the player “escaped”
from the club on 25 June 2023 and the player's behaviour was contrary to regulations and
laws and intended to force the club to terminate the contract.
25. As to the payments the club due by the club to the player, it provided with the following
table:
Player Name
Firas Chaouat
Total
contracting
353333.00
USD
53333.00 Total Signature Gift
40000.00 Net Signature Gift
Contracting
Net
Total
contracting
Taxes
12500.00
3125.00
9375.00
694.42
40000.00
173.61
10000.00
520.82
30000.00
40000.00
10000.00
3000.00
265000
Penalties
Net sum
5000.00
20000.00
15000.00
4415.66
17662.66
13247.00
Statement
Check No. 524821179 dated
9/2212022, entry No. (202)
Check No. 524821183 dated
9/1212022, entry No. (205)
Check No. 30090000244124
dated 02/06/2023, entry No. (664)
952000 C
Check No. 30090000244185
dated 02/13/2023, entry No. (706)
952000 C
Check No. 30090000244245
dated 03/512023, entry No.
(465000) C
Check No. 527457474 dated
22/512023 Abdul No. 0 410000 C
pg. 12
REF. FPSD-10961
630.85
2523.41
1892.56
81.63
81.63
81.63
81.63
35333.30
35333.00
70666.00
133380.49
31799.97
33345.12
141658.8 131835.3
2
5
The net contract value
Dismissed + penalties
Net due from the contract
Check No. 527457434 dated
24/5/2023, entJY No. (585761 c
AI-MasJY match alert on
4/20/2023 (Registration No.
10961
Warning for the Zamalek match
on 5/13/2023 (Registration
No.1211)
Haras El Hodoud match warning
on 5121/2023, Registration
No.(1237)
Warning for the Ceramica match
on 12/08/2022 (Registration
No. 1054)
10% discount on the contract
value of the players who
participated in the AI-Mahalla
match
Board of Directors Decision No.
(3) dated 28/2/2023
Registration No (1239)
10% discount on the contract
value of players who refused to
train with the team on
03/05/2023
20% discount from the players'
club for the Stars match in the
Egypt Cup
Resources development fees paid
to the Football Association
265000.00
273494.17
-8494.17
26. The club further provided with a copy of the Financial Regulations for the First Football
team.
27. In continuation, the club indicated that:
“1-The Player does not have the right to unilaterally terminate the Contract with just
cause due to the non-applicability of the regulations and conditions stipulated in
pg. 13
REF. FPSD-10961
Articles 14, 14 bis of the Regulations on the Status and Transfer of Players of the
International Federation of Football.
2- The inaccuracy of all the player’s claims, as the player received his dues
according to the bank checks shown in (Attachments 2 and 3), in an attempt to
force the Ismaily Club to terminate the contract.
Despite the club’s attempts with the player to continue participating with his team,
which was at risk of relegation to the lower division, as well as providing all means
of livelihood, but the player filed his complaint before FIFA so that he could obtain
undeserved compensation.
3-[The club] still is adhering to its contract with the player, Ismaily club requested
that the player continue with the club’s first team and respect his contract with the
club.
Because the player is the team’s main striker and there is no alternative for him,
and he is one of the team’s top scorers.
4- [The club] has filed a counterclaim against the Player in accordance with Article
21 of the Rules of Procedure of the Football Court.”
28. In view of the foregoing, the club requested payment of USD 1,2500,000 plus 5 % interests
in accordance with clause 6 of the contract.
29. The club requested FIFA the following relief:
“First: Reject the player lawsuit.
Second: Precautionary: Set a hearing session.
Third: Accept the club Counterclaim.
Fourth: Obliging the Player to pay compensation One million two hundred and fifty
thousand US dollars (1,2500,000 US dollars) (the compensation agreed upon in the
contract) in addition to 5% annual interest in addition to sports penalties and
suspending the Player.
Fifth: Obliging the Player to pay all the fees and expenses prescribed for this.”
c. Reply of the player to the counterclaim
30. In his reply to the counterclaim, the player mentioned the following:
pg. 14
REF. FPSD-10961
-
The below documents were created or issued by the club and cannot be taken into
account:
“- Club’s financial statement which was made by the club and not by the bank in order
to prove the effective payments of the described amounts.
- The financial regulations which is not received really by the player who had never
signed it or received a copy.
-Letter sent to EFA after 25 days from the termination of the contract.”
-
As to the amounts paid by the club, the player mentioned that he only received the
following amounts: USD 10,000 on September 2022, USD 60,000 on February 2023,
USD 15,000 on March 2023, USD 10,000 on May 2023.
-
As to the alleged disciplinary sanctions, the player indicated that:
“the alleged sanctions are baseless and groundless and provide by the club only in
order to escape its financial obligations.
Additionally, the player has never been notified by any notice or disciplinary sanction
during his contractual period. Moreover, the claimant is a very professional player
without any disciplinary incident during his career and had a very correct behavior
with the respondent despite all the club’s financial infringements.”
-
As to the allegations that the player escaped on 25 June 2023, the player stressed
that he participated in the club’s training sessions until that date and that he
terminated the contract with just cause on 25 June 2023.
d. Final comments of the club
31. The club failed to submit its final comments within the timeframe granted by the FIFA
general secretariat.
e. Position of the Intervening party
32. The Intervening Party failed to submit its position within the timeframe granted by the FIFA
general secretariat.
pg. 15
REF. FPSD-10961
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
33. 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 18 July 2023 and submitted for
decision on 12 January 2024. 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.
34. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par.1 lit. b)
of the RSTP (May 2023 edition), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international
dimension between a player from Tunisia and a club from Egypt, with the involvement of a
Bahraini club.
35. 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
18 July 2023 and the counterclaim on 1 September 2023, the May 2023 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
36. 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
37. Its competence and the applicable regulations having been established; the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
pg. 16
REF. FPSD-10961
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
38. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the justice of the early
termination of the contract by the player, based on the alleged non-payment of certain
financial obligations by the club.
39. As a preliminary matter, the Chamber observed that the English versions of the contract
provided by the parties are not identical. In view of this, the Chamber first had to determine
which of the English versions of the contract is to be applicable as to the present matter.
40. In doing so, the Chamber noted that although similar in content, the English version of the
contract provided by the player appears to be an unofficial translation, whereas the English
version provided by the club appears to be signed by the player and was not disputed by
him in his reply to the counterclaim. In view of the above, the Chamber decided that the
analysis carried below would be based with the English version of the contract provided by
the club.
41. Entering into the analysis of the case, the Chamber observed that its main task was to
determine as whether the claimed amounts had in fact remained unpaid by the club and,
if so, whether the formal pre-requisites of art. 14bis of the Regulations had in fact been
fulfilled.
42. In doing so, the Chamber first analysed whether the amounts due to the player should be
considered are gross or net. The Chamber noted in this respect that the contract refers
that the amounts mentioned in the contract are gross amounts (clause 2 of the contract)
and that the club is responsible for withholding the payment of the player’s taxes (clause
4.6 of the contract). However, the Chamber stressed that the club bore the burden of
proving that the deducted amounts in accordance with the table provided in its statement
of defense corresponded to taxes, and that the deducted amounts were paid to the
relevant tax entity. Nonetheless, no evidence was provided by the club in this respect. In
view of the foregoing, the Chamber concluded that amounts to be considered in the below
analysis are those expressly mentioned in the contract as part of the player’s
remuneration.
43. In continuation, with regard to the payments claimed (mainly cheques) by the club as per
the table provided in the reply, the Chamber stressed that the club bore the burden of
proving that it indeed complied with the financial terms of the contract. Nonetheless, no
evidence was provided to this effect. Moreover, the Chamber noted that the player
mentioned that the club provided him with cheques which he was not able to cash-out. In
addition, the DRC remarked that the player has filed in support of his position bank
pg. 17
REF. FPSD-10961
documents in which it was clearly stablished that the cheques were returned due to
insufficient funds. Therefore, the Chamber concluded that the club’s argumentation as to
the payment of the salaries cannot be upheld.
44. Then, as to the deductions mentioned by the club in the already cited table, the Chamber
observed that (i) no evidence and/or further explanation was provided and (ii) several
deductions made appear to be unilateral for disciplinary reasons, without any specific
justification and/or conduction of disciplinary proceedings. Therefore, the Chamber
concluded that the club’s argumentation as to the deduction of the salaries cannot subsist.
45. In view of the above considerations, the Chamber confirmed that the player would be
entitled to the following amounts until the termination of the contract (i.e., 25 June 2023):
-
Sign on bonus of USD 40,000 net;
-
Remuneration payable on 20 October 2022 of USD 150,000;
-
Remuneration payable on 31 January 2023 of USD 37,500;
-
Remuneration payable on 30 April 2023 of USD 37,500;
-
Bonus for participation of USD 25,000 net. It to be mentioned, as per the evidence
provided by the player, that he participated in 23 matches with the club;
-
Bonus for goals: USD 10,000: As per the evidence provided by the player, he scored
8 goals.
Total: USD 300,000
46. However, from the above amounts, the club, as acknowledged by the player, paid USD
95,000 until the termination of the contract and at the moment of the default notice on 9
June 2023, the Chamber observed that the club had failed to pay to the player USD 170,000.
47. It is to be noted that no due date was provided in the contract for the payment of the bonus
for participation and the bonus for goals, therefore, the Chamber considered that these
amounts were to be paid at the date of the termination of the contract. Therefore, they
were not due at the moment of the default notice.
48. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligations.
pg. 18
REF. FPSD-10961
49. The Chamber noted that the player claims not having received his remuneration
corresponding to USD 205,000 until the termination of the contract. Furthermore, the
Chamber noted that the player has provided written evidence of having put the
Respondent in default on 9 June 2023, i.e., at least 15 days before unilaterally terminating
the contract on 25 June 2023
50. Considering the wording of art. 14bis par. 2 of the Regulations and the fact that the player’s
salary was not due on a monthly basis, the Chamber calculated the pro-rata value of the
remuneration and concluded that the amount of USD 170,000 claimed corresponded to
approximately 5.5 monthly salaries.
51. Thus, the Chamber concluded that the player had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
52. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the club is liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, i.e., USD 205,000.
53. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the player interest at the rate of
5% p.a. on the following amounts:
-
On USD 95,000 as from 21 October 2022 until the date of effective payment.
-
On USD 37,500 as from 1 February 2023 until the date of effective payment.
-
On USD 37,500 as from 1 May 2023 until the date of effective payment.
-
On USD 35,000 as from 25 June 2023 until the date of effective payment.
54. 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.
55. 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
pg. 19
REF. FPSD-10961
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.
56. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
57. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 774,900 and EGP 168,000 (i.e., the remuneration
payable on 30 August 2023: USD 75,000; the remuneration payable for the season
2023/2024: USD 333,300; the remuneration payable for the season 2024/2025: USD
366,600 and the housing allowance: EGP 168,000) serves as the basis for the determination
of the amount of compensation for breach of contract.
58. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
59. Indeed, the player found employment with the Intervening Party. In accordance with the
pertinent employment contract, the player was entitled to USD 170,000 as salaries and BHA
5,500 as housing allowance. Therefore, the Chamber concluded that these amounts shall
be factored in as mitigation.
60. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e., overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
61. In this respect, the DRC decided to award the amount of additional compensation of USD
92,727, i.e., three times the monthly remuneration of the player (340,000 / 11 = 30,909 *3).
pg. 20
REF. FPSD-10961
62. The Chamber further stressed that as there was a specified amount for the housing
allowance in both contracts, the player fully mitigated the housing allowance.
63. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD
697,627 to the player (i.e., USD 774,900 minus USD 170,000 plus USD 92,727), which was to
be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
64. 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 25 June 2023 until the date of effective payment.
ii. Sanction under art. 17 of the Regulations
65. In continuation, the Chamber focused on the further consequences of the breach of
contract in question and, in this respect, it addressed the question of sporting sanctions
against the club in accordance with art. 17 par. 4 of the Regulations. The cited provision
stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall
be imposed on any club found to be in breach of contract during the protected period.
66. In this respect, the Chamber referred to item 7 of the “Definitions” section of the
Regulations, which stipulates inter alia that the protected period shall last “for three entire
seasons or three years, whichever comes first, following the entry into force of a contract, where
such contract is concluded prior to the 28th birthday of the professional, or two entire seasons
or two years, whichever comes first, following the entry into force of a contract, where such
contract is concluded after the 28th birthday of the professional”.
67. In this respect, the Chamber took note that the player was born on 8 March 1996 and the
relevant contract with the club was concluded on 22 November 2022. Furthermore, the
Chamber Judge noted that the contract was terminated without just cause on 25 June 2023.
The breach of contract by the club had therefore occurred within the protected period.
68. Furthermore, the Chamber wished to recall the Commentary on the RSTP (2023 edition)
“[…] the DRC has established jurisprudence according to which sporting sanctions are
regularly applied against clubs found, at least four times in the two years preceding
the DRC decision, to have terminated a contract without just cause or to have seriously
breached contractual obligations such that a player has just cause to terminate their
contract. It must be noted, however, that while the DRC applies this approach with
relative consistency, there were cases in which the circumstances merited sanctions to
be imposed on clubs right away even if the threshold of four repeated offences was
not met.
pg. 21
REF. FPSD-10961
In other words, should the circumstances of a case justify it, nothing prevents
the DRC from immediately imposing sporting sanctions, even in a first case of
breach of contract of a club. Likewise, it is clear that the Regulations allow the DRC
to impose sporting sanctions without any “mathematical” threshold, again depending
on the circumstances of each case. […]” (pp. 211 and 212) (emphasis added)
69. In view of the foregoing, the Chamber noted that as per the specific circumstances of the
case, (i) the club has been constantly in bad faith breaching the contract by providing
cheques without funds various times; (ii) not paying the player’s salary on time; and (iii) by
imposing alleged deductions to the salary, without providing the player with a further
explanation or to without conducting proper disciplinary proceeding. The Chamber
decided that, by virtue of art. 17 par. 4 of the Regulations, the club shall be sanctioned with
a ban from registering any new players, either nationally or internationally, for two entire
and consecutive registration periods.
70. In addition to the above, the Chamber wished to remark that the club has already been
found guilty of breach of contract by the Football Tribunal in the past two years, which
denotes a repetitive behaviour of the club in contravention of the principle of contractual
stability:
-
FPSD-6876 case under appeal at CAS, decision of 26 January 2023.
-
FPSD-6931 case under appeal at CAS, decision of 15 December 2022.
-
FPSD-8067 case under appeal at CAS, decision of 22 June 2023.
-
FPSD-8339 case closed, decision final and binding of 20 April 2023.
-
FPSD-8674 case under appeal at CAS, decision of 30 March 2023.
-
FPSD-9137 case under appeal at CAS, decision of 20 July 2023.
71. For the sake of completeness, the Chamber recalled that in accordance with article 24 par.
3 lit. a) of the Regulations, the consequences for failure to pay relevant amounts in due
time may be excluded where the Football Tribunal has imposed a sporting sanction on the
basis of article 17 in the same case. Consequently, the Chamber confirmed that the
consequences for failure to pay relevant amounts in due time envisaged by art. 24 of the
Regulations were excluded in the present matter, and that should the Respondent fail to
timely comply with this decision, it would be for the FIFA Disciplinary Committee to adopt
the necessary measures in accordance with the FIFA Disciplinary Code.
d. Costs
72. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
pg. 22
REF. FPSD-10961
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
73. 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.
74. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 23
REF. FPSD-10961
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Firas Chaouat, is partially accepted.
2.
The claim of the Respondent/Counter-Claimant, Ismaily SC, is rejected.
3.
The Respondent/Counter-Claimant must pay to the Claimant/Counter-Respondent the
following amounts:
- USD 95,000 as outstanding remuneration plus 5% interest p.a. as from 21 October 2022
until the date of effective payment;
- USD 37,500 as outstanding remuneration plus 5% interest p.a. as from 1 February 2023
until the date of effective payment;
- USD 37,500 as outstanding remuneration plus 5% interest p.a. as from 1 May 2023 until
the date of effective payment;
- USD 35,000 as outstanding remuneration plus 5% interest p.a. as from 25 June 2023
until the date of effective payment;
- USD 697,627 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 25 June 2023 until the date of effective payment.
4.
Any further claims of the Claimant/Counter-Respondent are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
The Respondent / Counter-Claimant shall be banned from registering any new players,
either nationally or internationally, for the two next entire and consecutive registration
periods following the notification of the present decision.
7.
If full payment is not made within 30 days of notification of this decision, the present matter
shall be submitted, upon request of the Claimant, to the FIFA Disciplinary Committee.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 24
REF. FPSD-10961
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 25