Labour Disputes
Texto da decisão
REF. FPSD-15962
Decision of the
Dispute Resolution Chamber
passed on 27 November 2024
regarding an employment-related dispute concerning the Player
Ibrahim Gambo
COMPOSITION:
Lívia Silva Kägi (Brazil & Switzerland), Deputy Chairperson
Mario Flores Chemor (Mexico), Member
Stella Maris Juncos (Argentina), Member
CLAIMANT:
Ibrahim Gambo, Nigeria
RESPONDENT:
Smouha, Egypt
Represented by Mr Mohammed Mitwally
pg. 2
REF. FPSD-15962
I. Facts of the case
1. On 6 September 2023, the Nigerian player Ibrahim Gambo (hereinafter: Claimant or player)
and the Egyptian club Smouha (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: the Contract) valid as from the date of signature, valid for three
seasons (i.e., until the end of the 2025/2026 season).
2. According to the Contract, the Respondent undertook to pay the Claimant the following
remuneration:
-
USD 20,000 for the 2023/2024 season
-
USD 30,000 for the 2024/2025 season
-
USD 40,000 for the 2025/2026 season
3. Furthermore, subject to said Contract, the following conditions were mutually agreed:
-
“The Player will be entitled to winning bonus according to the club financial regulations
-
The club is obligated to pay for a suitable accommodation for the player throughout the
duration of this contract
-
The Club financial regulation is an integral part of this agreement and complement to it
-
The Player will be entitled to two tickets each season and one for his family
-
This agreement covers the duration and the payments of the contract and the details of the
employment contract will be filed in the EFA certified contract.”
4. On the same day, the Claimant was allegedly informed that the exact payment schedule
would be detailed in a standard form Egyptian FA contract, and was allegedly made to sign
a blank standard form Egyptian FA contract, of which he was never handed a copy.
5. Towards the end of the 2023/2024 season, the Respondent booked a round-trip ticket for
the Claimant leaving to Nigeria on 17 August 2024, and returning to Egypt on 1 September
2024.
6. According to the Claimant, at the end of the season 2023/2024, he had only received 50%
of his remuneration, namely: USD 5,000 down payment at the beginning of the season, and
thereafter 10 salaries of USD 500 each.
pg. 3
REF. FPSD-15962
7. At the beginning of August 2024, the Claimant was allegedly approached club
representatives, who offered him a fee of USD 1,000 to mutually terminate the Contract.
The Claimant refused such offer.
8. On 16 August 2024, whilst travelling to the airport for his flight back to Nigeria, the Claimant
was allegedly approached by an agent frequently collaborating with the Respondent and
who had facilitated the Claimant’s initial transfer to the Respondent (“the Agent”), who
attempted to convince him to sign a mutual termination agreement, whereas the Claimant
insisted that he would only terminate if he was paid the residual value of the Contract.
9. On 17 August 2024, the Respondent cancelled the Claimant’s flight to Nigeria and ordered
him to return to the club’s premises in order to participate in a cup match scheduled for 21
August 2024. The club representative allegedly also reprimanded him for missing training
on 16 August 2024.
10. On the same day, the Respondent provided the Claimant with a new flight ticket, departing
to Nigeria on 1 September 2024. In reply thereto (via WhatsApp), the Claimant informed the
Respondent that he was not feeling safe due to the behaviour of the Respondent and that
he felt forced and coerced, since the Respondent already “knew about the cup long ago”. The
Respondent subsequently allegedly replied that it did nothing wrong, it was calling upon the
Claimant to participate in cup matches, and that it paid the Claimant all of his financial dues,
and threatened that every day he missed training, a penalty would be imposed.
11. On the same day still, the Claimant sent a formal email to the Respondent, informing that
he had been approached to sign a mutual termination agreement for USD 1,000, that his
flight ticket was abusively cancelled, and that he was suddenly recalled to play an additional
cup match at short notice, all despite still being owed remuneration of USD 10,000 from the
course of the season.
12. On 18 August 2024, the Respondent replied, asserting that it never attempted to force the
Claimant into any termination agreement and that such a potential agreement had to be
mutual. Furthermore, the Respondent confirmed having recalled the Claimant from his
scheduled flight, emphasizing that his participation in the cup match was crucial, and lastly,
requesting specific details as to which amounts were outstanding.
13. On the same day, the Claimant replied, informing that he was indeed approached to
mutually terminate the Contract for a value of USD 1,000, which is completely
disproportionate to the value of the entire Contract for the remaining two seasons. The
pg. 4
REF. FPSD-15962
Claimant further informed that he does not understand the decision to recall him from his
flight, since he did not receive a chance to play all season and the Respondent knew well in
advance that the cup match was happening. Lastly, the Claimant specified that he had been
paid only USD 10,000 of the USD 20,000 to which he was entitled during the season,
meaning that USD 10,000 remained outstanding.
14. On 21 August 2024, the Claimant sent an email to the Respondent requesting a change of
the flight ticket for 23 or 24 August 2024 (rather than 1 September 2024), as well as
requesting a meeting to collect the outstanding amounts of USD 10,000.
15. On 22 August 2024, the Claimant sent a follow up email, requesting an update as to the
flight ticket and the outstanding amounts. The Claimant further pointed out that he was
once again contacted by the Agent, informing him that the Respondent would be willing to
mutually terminate the Contract for a payment of USD 4,000, and only after thereto he
would receive a flight ticket sooner.
16. At an unspecified date, the Respondent’s legal representative reached out to the Claimant,
requesting him to clarify which amounts were outstanding. After the Claimant explained
this, the Respondent’s legal representative stated “make sure that no one would force you to
terminate your contract, if we haven’t reached an agreement you will stay at the club (…) if you
have any outstanding dues you will take it, if you don’t want to terminate your contract amicably
you will stay”.
17. At another unspecified date, the Respondent and the Claimant discussed the possibility of
amending the flight tickets and the Respondent eventually provided the Claimant with a
flight ticket departing on 25 August 2024. In this exchange, the Claimant informed the
Respondent “where is my money 10,000”.
18. On 23 August 2024, according to the Respondent, the Agent allegedly reached out to the
former to inform them that the Claimant would be willing to mutually terminate the
Contract for a termination fee of USD 5,000.
19. Prior to his departure, the Claimant was contacted by the Agent, and was requested to come
to a specific address to discuss his future plans with the Respondent. Subsequently, the
Claimant was allegedly escorted to the Agent’s office, and forced to sign a mutual
termination agreement, accepting USD 5,000 as a lump sum fee.
pg. 5
REF. FPSD-15962
20. On 23 August 2024, the Claimant and the Respondent signed a mutual termination
agreement (hereinafter: the Termination Agreement). The Claimant alleges that this
Agreement was signed under duress. Inter alia, the Termination Agreement reads as
follows:
“The player hereby declares that up to today he has been fully satisfied by the Club of any
and all his payments as well as of any and all the Club’s obligations (i.e., financial, provisions,
bonuses, benefits, etc.) stated in the Employment Contract and, as a consequence, is not
entitled to receive any other further payment and/or benefit from the Club.”
21. Still on the same day, the Claimant purportedly sent an email to the Respondent – from a
different email account than all previous correspondence – stating as follows:
“Hello sir, since I told the club that any agreement in termination is not valid unless it’s by
email, I hereby declare that I have settled and terminated my contract with Smouha SC
amicably by mutual agreement and that I am not entitled to any other amounts of money in
the future.”
22. On 25 August 2024, the Claimant addressed the Respondent via email, informing as follows:
“For security reasons, I was waiting until I arrive back in Nigeria before I can send this email.
As I have expected, my return from the airport to the club on the 16th had nothing to do with
the Cup game. The scenario was exactly what I have detailed in the email I sent on 17/08:-I
was excluded from the cup game and was not even in the list/on the bench.-My flight ticket
was only changed after I sent a number of emails, and the return ticket was booked for
the25th of August, although my teammate who comes from the same country was flown back
a couple of days earlier.-One day before my flight, I was escorted after midnight by the agent
who brought me to the club, alongside three of his colleagues, to his office, and I was not
allowed to leave until I filmed a video confirming that I have agreed to mutual termination,
and I was forced to sign a completely blank contract. was then allowed to leave at some time
around 4 am.
You can imagine how terrorizing the experience was for a 20-year-old in a foreign country. I
am truly shocked and have been in a psychological breakdown ever since. I am only sending
this email today as I was feeling completely unsafe and thought I can only be safe after I leave
the country and return to Nigeria. I will write to the Nigerian Embassy in Egypt detailing all
the events that took place, with evidence that I have in my possession.
As I have previously declared in my previous emails, such conduct by which a foreigner is
coerced to agree to termination is against all rules, laws and human rights. I have previously
communicated by email that any termination agreement I sign is void and null. Therefore,
this is to confirm that any document I signed and any video I made was made by force and
pg. 6
REF. FPSD-15962
under threat. My contract with the club runs until the end of 2025/2026, and in the event that
the club does not register or release me using the aforementioned documents, I will directly
file a claim for breach of contract. Lastly, please provide me with a document in order to
obtain an entry visa to Egypt as my return is scheduled for 6 September. I would also like to
ask the club for guarantees that such actions will not happen again following my return.”
23. On 31 August 2024, the Claimant sent a reminder to the Respondent, stating that he
considered the Termination Agreement null and void as it was signed under duress. The
Claimant further informed that his Contract was due to run until the end of the 2025/2026
season, and that he was waiting for a visa to return to Egypt, and that he wanted to obtain
his outstanding amounts from the previous season, the down payment for the following
season and guarantees that he would not be treated as poorly as before upon his return.
24. On 3 September 2024, the Claimant sent a further reminder.
25. On 5 September 2024, the Respondent replied that it categorically denies threats and
duress exercised on the Claimant, and that the Termination Agreement was reached
amicably, in exchange for a sum of USD 5,000. As the Contract was terminated, the
Respondent saw no obligation to facilitate a visa for the Claimant’s return.
pg. 7
REF. FPSD-15962
II. Proceedings before FIFA
28. On 9 September 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
29. In his claim, the player argued that the Respondent coerced him into signing a mutual
termination agreement after failing to pay him half of the remuneration he was entitled to
during the season, and abusively cancelling his flight ticket to return home.
30. The Claimant insisted that the termination of the Contract should be null and void, and that
the Respondent should be held liable to pay the residual value of the Contract instead,
treating the present case as one for termination without just cause by the Respondent.
31. The Claimant formulated the following request for relief:
-
USD 75,000 compensation – i.e., residual value minus USD 5,000 received on
23 August 2024;
USD 2,284 approximate travel costs which would have been included in the Contract,
were it not for the breach;
Sporting sanctions on the Respondent;
Interest as from 23 August 2024.
b. Position of the Respondent
32. The Claimant insisted that the termination of the Contract should be null and void, and that
the Respondent should be held liable to pay the residual value of the Contract instead,
treating the present case as one for termination without just cause by the Respondent.
33. In its reply, the Respondent acknowledged the facts as presented by the Claimant, however,
disputed that the latter was coerced into signing the Termination Agreement or that this
was signed under any form of duress.
34. The Respondent indicated that it intended to terminate the Contract with the Claimant due
to his poor sporting performance and that it wanted to find a mutually satisfactory solution
in order not to terminate the Contract unilaterally.
35. It equally explained that the decision to recall the Claimant’s flight ticket was due to the
importance of the cup match that had been scheduled at short notice. At the same time,
the Respondent stated that the Claimant, despite being called back to participate in this cup
match, ended up being excluded because “he did not prove himself to the manager”.
pg. 8
REF. FPSD-15962
36. The Respondent further emphasised that the Claimant had, through the Agent, verbally
agreed to accept USD 5,000 as a fee to mutually terminate the Contract, which was
subsequently ratified via the Termination Agreement.
37. Equally, the Respondent wished to emphasise that the Claimant was entitled to less money
than alleged, and that all financial obligations were complied with. In particular, the
Respondent indicated that although both parties mutually signed the Contract which
indicated that the total remuneration for the three seasons corresponded to USD 20,000,
USD 30,000 and USD 40,000 annually, the official version of the Contract was the one
submitted to the EFA, pursuant to which the Claimant was rather entitled to USD 7,700, USD
13,200 and USD 16,800 each season respectively.
38. The Respondent also wished to clarify that this change in figures is related to tax deductions
which would have been made in connection to the originally agreed amounts, as well as
representing a “guaranteed” fixed remuneration, whereas the originally indicated figures
included discretionary bonuses conditional on performance.
39. In this regard, the Respondent stressed that the Claimant’s allegation of signing an “empty”
standard form EFA contract was not corroborated by any evidence, and that the latter
version of the Contract should stand.
40. Consequently, the Respondent asserted that it never exercised any duress in making the
Claimant sign the Termination Agreement and that he did so with his free will, and that all
financial obligations were complied with. The Respondent further pointed out that the
Claimant ratified this by allegedly sending an email confirming that he accepted USD 5,000
as an early termination fee on 23 August 2024.
41. The Respondent also acknowledged the existence of the WhatsApp communications
between itself and the Claimant, which were included in the latter’s submission,
emphasising that it informed the Claimant, that, if he did not want to terminate his Contract
amicably, he should stay, and that he should not feel forced to sign a termination
agreement.
42. In conclusion, the Respondent requested that the Termination Agreement should be
upheld, and that the claim should be dismissed in its entirety.
c. Replica of the Claimant
43. The Claimant equally specified that the original version of the Contract neither specified net
or gross, meaning that the diminished amounts under the standard contract cannot be
attributed to tax deductions. This was particularly the case, according to the Claimant, since
it was the first time that he had concluded an employment contract outside of his local club
and that he did not understand what the implications of net or gross may be.
pg. 9
REF. FPSD-15962
44. The Claimant equally specified that the original version of the Contract neither specified net
or gross, meaning that the diminished amounts under the standard contract cannot be
attributed to tax deductions. This was particularly the case, according to the Claimant, since
it was the first time that he had concluded an employment contract outside of his local club
and that he did not understand what the implications of net or gross may be.
45. Moreover, the Claimant stressed that the original Contract already foresaw bonuses
payable in accordance with club regulations in addition to the abovementioned figures,
thereby demonstrating that the deductions in the standard contract were unilateral,
abusive and not supported by any other logical explanation.
46. In any event, the Claimant relied on the principle of in dubio contra proferentem to argue that
the amounts in the Contract should be interpreted in his favour, since the Respondent was
the one to draft the Contract.
47. The Claimant also denounced the Respondent’s line of reasoning that it “decided to carry
on with the player’s Contract”, since the only reason it did so was because he refused to sign
a mutual termination agreement and it could not unilaterally terminate the Contract due to
sporting performance without opening itself up to liability for breach of contract.
48. The Claimant equally emphasised that the manner in which he was recalled for the cup
match, after travelling to the airport to depart for his seasonal break, was humiliating
particularly since he ended up not being selected for this match. The Claimant considered
this particularly aggravating in light of the fact that he had never been selected for a match
before, and that, suddenly, the Respondent deemed his presence at short notice
indispensable, only to exclude him once again.
49. The Claimant further wished to provide context in this sense by arguing that the Respondent
should have been convinced that his performance was unsatisfactory, since it had
conducted due diligence and permitted the Claimant to participate in a trial before
eventually acquiring his services from his former club against payment of USD 30,000.
50. The Claimant equally asserted that the Respondent demonstrated its bad faith in rebooking
the return ticket to Nigeria with delay after the cup match was completed, since it was
fishing for time to be able to coerce him into the Termination Agreement. The Claimant
emphasised that this was corroborated by the various exchanges of correspondence
between himself, club representatives, and the Agent.
51. The Claimant wished to also stress that the signature of the Termination Agreement per se
is illogical and lacks consideration, since he allegedly accepted a sum of USD 5,000 which
consists of a fraction of the residual value of the Contract to which he would be entitled in
normal circumstances.
pg. 10
REF. FPSD-15962
52. The Claimant equally denounced the line of argument that the Agent allegedly negotiated
the USD 5,000 settlement fee on his behalf, since he was not formally empowered to
represent him in such negotiations and that there is no valid written authorisation on file.
53. What is more, the Claimant pointed out the timeline on the day of signing the Termination
Agreement. The Claimant was forced to the premises of the Respondent at around 10:30pm,
and only allowed to leave at around 4am, which points to the fact that the signature was all
but voluntary.
54. Furthermore, as to the email which the Claimant allegedly sent following the signature of
the Termination Agreement to confirm and ratify its contents, he pointed out that, rather
than from his original email, such email was sent from an email with a different domain and
different spelling of his first name. The Claimant reasoned that this inconsistency, combined
with the sudden change in attitude from all his previous emails in which he affirmed that he
only wanted to settle if he received the residual value of his Contract corroborated that he
was not only coerced to sign the Termination Agreement, but that the Respondent
maliciously attempted to mislead the tribunal by submitting a forged email.
55. Moreover, the Claimant wished to emphasise that the reason he never went to the police
or the Nigerian embassy in Egypt was because it was his first time living abroad, he was
unfamiliar with the customs and afraid for his safety, and in any event, after being released
from the club’s premises at 4am on 24 August 2024, the embassy was not operational.
56. The Claimant wished to conclude his submission by stating that the Respondent allegedly
recorded a video of him in which he held the USD 5,000 settlement fee and was allegedly
thanking the Respondent for its efforts to amicably resolve the matter – which not only
contradicted his previous position in his communications with the club, but equally was
humiliating for him and another indication of duress – since he would not agree to accept
such a modest sum to settle and amicably withdraw from the Contract when the residual
value thereof was more than tenfold.
57. Thus, the Claimant insisted on his initial request for relief.
d. Duplica of the Respondent
58. In its duplica, the Respondent accused the Claimant of fraudulently creating a second email
account to confirm the validity of the Termination Agreement, and to manipulate the
narrative to make it seem that such email was a “fake”.
59. The Respondent equally reiterated that there is no evidence to suggest that the Claimant
had signed a blank EFA standard contract and that the remuneration to which he was
entitled was amended in bad faith.
pg. 11
REF. FPSD-15962
60. The Respondent also repeated its arguments about poor performance, adding that the
decision not to include him in matches is made by the technical staff and not a reason to
jeopardise its decision to recall him from his scheduled trip to Nigeria.
61. Moreover, the Respondent pointed out that, if the Claimant had really been coerced and
treated as poorly as alleged, he would not have expressed the intention to return after his
trip to Nigeria to resume his activity under the Contract.
62. The Respondent was equally of the opinion that, regardless of his allegations of being a
foreigner and feeling anxious, if the Claimant was coerced, he would have sought out the
Egyptian police or the Nigerian embassy for assistance.
63. The Respondent additionally affirmed that the Agent was not hired by itself and acted under
no direct influence from the Respondent, hence any coercion which the Claimant may have
experienced from the Agent cannot be attributed to the Respondent.
64. What is more, the Respondent argued that the Claimant’s subsequent intention to remedy
the issue and request the remaining amounts he was entitled to after leaving Egypt for
Nigeria is merely a bad faith attempt at gaining monies which he validly waived as part of
the Termination Agreement.
65. In conclusion, the Respondent requested for the claim to be dismissed.
pg. 12
REF. FPSD-15962
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
66. First of all, the Dispute Resolution Chamber (hereinafter: the 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 9 September 2024 and submitted for decision on
27 November 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.
67. Furthermore, 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
Regulations on the Status and Transfer of Players (June 2024 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Nigerian player and an Egyptian
club.
68. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 9 September 2024, the June 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
69. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not
filed by the parties, including without limitation the evidence generated by or within the
Transfer Matching System (TMS).
c. Merits of the dispute
70. Having established the competence and the applicable regulations, 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 assessing the
matter at hand.
pg. 13
REF. FPSD-15962
i. Main legal discussion and considerations
71. The Chamber then moved to the substance of the matter, and took note of the fact that the
parties strongly dispute the nature of the circumstances in which the parties departed from
the Contract.
72. On one hand, the Chamber recalled that the Claimant had argued that the Respondent
abusively and coercively made him sign the Termination Agreement. The Claimant
emphasised that this document should be held invalid, and that the Respondent should be
held liable to pay not only outstanding remuneration, but also compensation for breach of
contract. Lastly, the Claimant argued that the Respondent had been in breach of the
contract regardless, since it failed to remit half of the amounts stipulated under the original
and valid Contract (i.e., not the standard form EFA contract on which the Respondent’s line
of reasoning rests).
73. The Respondent, on the other hand, denied any duress having taken place, and argued that
the Claimant freely agreed to the Termination Agreement, accepting a lump sum payment
of USD 5,000 and waiving any further entitlement or right to lodge a claim. The Respondent
also emphasised that the remuneration to which the Claimant was entitled was significantly
lower than what was claimed, and that all of its financial obligations were complied with.
74. In this context, the Chamber understood that its task was to address the following
questions, based on the evidence on file:
-
Which Contract was valid and binding between the parties?
Was the Respondent – at all – in default at the time the Termination Agreement was
concluded?
Is the Termination Agreement valid and binding?
If not, under what circumstances the Contract terminated?
What are the consequences?
75. With this established, the Chamber moved on to discuss the merits of the present case,
starting with the question of which contract was valid and binding between the parties.
76. In this respect, the Chamber observed that the Claimant and the Respondent both agree
that they signed a contract foreseeing an increasing annual remuneration of USD 20,000,
USD 30,000 and USD 40,000.
77. Thereafter, the Chamber recalled that the Claimant alleged that he was tricked by the
Respondent into signing a blank EFA standard contract which foresaw a significantly lower
remuneration, whereas the Respondent argued that this Contract was freely signed by the
Claimant and effectively equivalent, since it represented the same figures whilst taking into
account various tax deductions and deducting conditional amounts that varied based on
performance.
pg. 14
REF. FPSD-15962
78. In respect of the above, the Chamber deemed the following points noteworthy:
-
The original Contract stipulated that the terms thereunder represented all payments
due during the Contract’s term and would only be supplemented by “details” in the
EFA standard contract.
-
The original Contract was uploaded onto TMS, whereas the EFA standard contract
was not.
-
The Respondent, despite arguing that the Claimant had willingly agreed to such an
amendment of terms (no less the same day the Contract was signed), adduced no
evidence of any negotiation taking place in this regard, or that the Claimant was at
all aware of the amended terms.
-
The Claimant repeatedly mentioned in his default notices that he was entitled to a
total annual salary of USD 20,000, whereas the Respondent never challenged this
until after the Termination Agreement was signed, where the latter vaguely stated
that it complied with its financial obligations. This was, in the Chamber’s view,
particularly noteworthy since the sum that remained unchallenged for an extended
time by the Respondent (USD 10,000) even exceeded the value of the annual salary
indicated in the EFA standard contract.
79. The Chamber, in light of the foregoing, understood from the above that, although there is
not sufficient evidence to suggest that the Claimant signed a blank standard contract, the
parties’ actual intention and the contractual basis governing their employment relationship
was the Contract which stipulated annual salaries of USD 20,000, USD 30,000 and
USD 40,000.
80. Thus, the Chamber disregarded the EFA standard contract for the sake of the present
proceedings, and continued with its analysis of the merits of the dispute by assessing the
ramifications of the Termination Agreement.
81. It was recalled, at this stage, that the Claimant was, per the terms of the Contract, entitled
to USD 20,000 during the course of the 2023/2024 season.
82. Equally, it remained undisputed that the Respondent paid – until the signature of the
Termination Agreement – only USD 10,000 thereunder (namely, an advance payment of
USD 5,000 and 10 instalments of USD 500 between August 2023 and June 2024, when the
season had ended).
83. Lastly, the Chamber noted that the Respondent did not adduce any other proofs of payment
to corroborate that the allegedly outstanding amounts had been remitted.
pg. 15
REF. FPSD-15962
84. Thus, the Chamber was able to establish that, at the time of the Termination Agreement
being signed, the Respondent was in default of payment of USD 10,000 – i.e., half of the
remuneration the Claimant had been entitled to at that point.
85. With this in mind, the Chamber went on to analyse the validity of the Termination
Agreement.
86. The Chamber deemed it crucial, in this respect, to recall the timeline of the Agreement’s
conclusion, and to establish the uncontested and duly corroborated facts (as opposed to
unilateral, uncorroborated allegations) prior to assessing the validity of the Agreement
itself. The Chamber hereby recalled the important principle of the burden of proof, in
particular art. 13 par. 5 of the Procedural Rules.
87. The timeline which incorporated the most relevant facts of this analysis were recalled by the
Chamber as follows:
-
Towards the end of the 2023/2024 season (approx. June/July 2024), the Claimant
received a round trip ticket to Nigeria, leaving on 17 August 2024 and returning to
Egypt on 1 September 2024.
-
At this stage, the Respondent was in default of USD 10,000 – half of the remuneration
the Claimant should have received by that point.
-
At the beginning of August 2024, it is uncontested that the Claimant was approached
by the Respondent to mutually terminate the Contract in exchange for a lump sum
payment of USD 1,000. The Claimant refused such offer.
-
On 16 August 2024, on the way to the airport for his flight to return to Nigeria, the
Claimant was contacted by the Agent insisting on signing a mutual termination
agreement, which was once again refused by the Claimant as he requested the
residual value of the Contract.
-
On 17 August 2024, the Respondent unilaterally cancelled the Claimant’s flight and
requested him to return for a cup match scheduled four days later. Immediately
thereafter, the Respondent provided him with a flight ticket departing
1 September 2024.
-
On the same day, the Claimant formally informed the Respondent via email that he
was approached to sign a mutual termination agreement in exchange for a lump
sum of USD 1,000, which he categorically refused and instead requested payment of
the outstanding USD 10,000 from during the season.
-
On 18 August 2024, the Respondent denied that it proposed to sign a mutual
termination agreement and requested the Claimant to clarify what amounts were
outstanding.
-
On the same day, the Claimant clarified that the amounts that were outstanding
corresponded to USD 10,000, i.e., half of the remuneration due during that season.
pg. 16
REF. FPSD-15962
-
On 21 August 2024, the Claimant requested an amendment of his flight ticket and a
meeting to collect the outstanding USD 10,000.
-
On 22 August 2024, the Claimant followed up with the Respondent.
-
At unspecified dates thereafter, the Respondent’s legal representative reached out
personally to the Claimant to inquire about the outstanding amounts and to inform
him that if he did not want to amicably settle, that he should carry out the term of
his Contract.
-
On 23 August 2024, the Agent informed the Respondent that the Claimant allegedly
agreed to accept USD 5,000 for the early termination of the Contract.
-
On the same day, the Claimant and the Respondent signed the Termination
Agreement (allegedly under duress), and the Claimant allegedly sent an email (from
another address) ratifying said agreement.
-
On 24 August 2024, the Claimant returned to Nigeria.
-
On 25 August 2024, the Claimant emailed the Respondent, stating that he was
coerced into the Agreement and that he wished either to be reintegrated into the
squad so that he may carry out the Contract pursuant to its term, or otherwise that
he would lodge a claim for breach of contract against the Respondent.
-
On 31 August 2024, the Claimant sent a reminder concerning his previous
communication.
-
On 3 September 2024, the Claimant sent a reminder once again.
-
On 5 September 2024, the Respondent denied that it put the Claimant under duress,
that the Claimant accepted payment of USD 5,000 and that it considered the Contract
mutually terminated.
88. In respect of the above, the Chamber wished to underscore several noteworthy points.
89. Firstly, the Respondent was in breach of its obligations and owed the Claimant half of his
remuneration for the previous year. Considering that the Termination Agreement foresaw
a payment of USD 5,000, and the Respondent was in debt of USD 10,000, this would entail
that the Claimant would have had to waive USD 5,000 (or 25% of his annual remuneration)
for work already performed.
90. The Chamber hereby emphasised what is trite jurisprudence of the Football Tribunal, and
reinforced by the relevant provisions under the Swiss Code of Obligations – salaries for work
already performed may not be validly waived. In the Chamber’s view, this already
undermined the validity of the Termination Agreement significantly.
91. Moreover, the Chamber opined that the Respondent clearly acted in bad faith and abused
its power over the Claimant when cancelling his flight ticket when he had already been at
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REF. FPSD-15962
the airport and checked in, only to recall him to its premises for a cup match that he never
even ended up playing.
92. The fact that the Respondent had booked the player’s flight tickets and had the discretion
to cancel them at its will suggests that the Claimant was clearly in a vulnerable position, as
his departure from Egypt for his regular seasonal break was clearly conditioned by the
Respondent’s willingness to let him go. This created a precarious situation for the Claimant
that placed him far from “arm’s length” when negotiating the Termination Agreement.
93. Not less importantly, the Claimant consistently voiced his intention of not wanting to
mutually terminate the Contract unless he received the residual value of the Contract, and
turned down several modest offers from the Respondent in this regard. This rendered the
eventual acceptance of the USD 5,000 lump sum completely contradictory to his previous
stance, particularly in light of the fact that his ability to leave Egypt was at the club’s mercy,
and that the latter already exhibited its willingness to cancel the Claimant’s flight tickets as
it pleased.
94. The Chamber, therefore, deemed that the principle of venire contra factum proprium was
applicable and that the Claimant, unless corroborated by evidence to the contrary (quod
non, in the case at hand), cannot reasonably be understood to have accepted a sum of
USD 5,000 when he would have been entitled to USD 80,000 if the Contract would continue
to be executed – 16 times the settled amount.
95. What the Chamber found even more striking was the email allegedly sent by the Claimant
on 23 August 2024, from the in which the contents of the Termination Agreement appeared
to have been ratified.
96. The Chamber noted that all previous correspondence (the contents of which remained
undisputed between the parties) involved a different email address by the Claimant, and
the Respondent’s line of argument that this is a fraudulently created account by the
Claimant was only brought during the second round of submissions.
97. The Chamber firmly opined that, had the Respondent truly believed this, it would have
indicated this at the latest during its first submission, the reply to the claim. What is more,
considering the seriousness of the Respondent’s accusation, the fact that such accusation
was completely unsupported by evidence of any kind, rather jeopardised the picture the
Respondent was attempting to present of the case at hand than support its claim of the
Termination Agreement being a document signed of mutual willingness and in good faith.
98. Lastly, and most importantly, almost immediately after the conclusion of the Termination
Agreement, the Claimant challenged its validity and denounced the Respondent for having
coerced him into signing this agreement. The Respondent, on the other hand, took around
10 days and two reminders by the Claimant to reply to this serious allegation, further
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REF. FPSD-15962
cementing the Chamber’s view that had already been formed in light of all the
aforementioned factors.
99. All in all, the Chamber unanimously considered that the evidence on file suggested that the
Respondent exercised undue influence over the Claimant when signing the Termination
Agreement, and that the Claimant, under normal circumstances, would never have agreed
to such terms.
100. Therefore, the Chamber reached the clear conclusion that the Termination Agreement
had been signed under the undue influence of the Respondent upon the Claimant, and that,
by driving the Claimant towards signing such Agreement, the Respondent unilaterally
terminated the Contract on 23 August 2024.
101. Lastly, with this established, it remained for the Chamber to assess whether such
unilateral contractual termination occurred lawfully or whether the Respondent had
committed a breach of contract without just cause.
102. The Chamber recalled that the Respondent abusively forced the Claimant into signing
the Termination Agreement. Furthermore, the Respondent had been in default of
USD 10,000 – 50% of the total remuneration due to the Claimant – at the time of signature.
103. Pursuant to the jurisprudence of the Football Tribunal, a premature termination of a
contract may only be construed as having been with just cause if the threshold of ultima
ratio is met. In the case at hand, the Chamber noted that, not only was such threshold not
met, but the Respondent – who terminated the Contract – was actually the party in breach
of its obligations.
104. Consequently, the Chamber concluded that the Respondent terminated the Contract
without just cause on 23 August 2024.
ii. Consequences
105. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
106. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to USD 10,000.
107. In this respect, the Chamber noted that, although the Contract did not clearly stipulate
the way in which the Claimant’s remuneration ought to be paid, it remained undisputed that
the Claimant received an advance payment of USD 5,000 and subsequently 10 instalments
of USD 500 each. Thus, based on this approach and taking into account the advance
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REF. FPSD-15962
payment, the remaining remuneration should have been paid together with the monthly
instalments.
108. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under the contract at the moment of the termination, i.e.
USD 10,000.
109. 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 Claimant interest at
the rate of 5% p.a. on the outstanding amounts as from 23 August 2024 until the date of
effective payment.
110. 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.
111. 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.
112. 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.
113. The Chamber deemed it important to recall, at this stage, that the Claimant had already
received a payment of USD 5,000 from the Respondent in as far as the compensation for
breach of contract goes, when the Contract was terminated on 23 August 2024.
114. 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
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REF. FPSD-15962
concluded that the amount of USD 65,000 (i.e. the residual value of the Contract, minus
USD 5,000) serves as the basis for the determination of the amount of compensation for
breach of contract.
115. 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.
116. In the case at hand, the Claimant failed to find any new employment following the
contractual termination, leading to neither mitigation, nor additional compensation being
applicable.
117. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 65,000 to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
118. 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 24 August 2024 until the date of effective payment.
iii. Compliance with monetary decisions
119. 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.
120. 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.
121. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay
the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
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REF. FPSD-15962
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
122. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
123. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to
its complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
124. 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.
125. 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.
126. 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-15962
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ibrahim Gambo, is partially accepted.
2.
The Respondent, Smouha, must pay to the Claimant the following amount(s):
- USD 10,000 as outstanding remuneration plus 5% interest p.a. as from 23 August 2024
until the date of effective payment;
- USD 65,000 as compensation for breach of contract plus 5% interest p.a. as from
24 August 2024 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent 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.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-15962
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 24