Labour Disputes
Texto da decisão
REF FPSD-6704
Decision of the
Dispute Resolution Chamber
passed on 29 September 2022
regarding an employment-related dispute concerning the player Yaser
Mohamed Hamed
BY:
Omar Ongaro (Italy), Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Michele Colucci (Italy), member
CLAIMANT:
Yaser Mohamed Hamed, Palestine & Spain
Represented by Santiago Liste Cortizo
RESPONDENT:
El Masry Sporting Club, Egypt
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I. Facts of the case
1.
On 11 January 2022, the Spanish and Palestinian player, Yaser Mohamed Hamed
(hereinafter: the Claimant or the player), and the Egyptian club, El Masry (hereinafter: the
Respondent or the club) signed an employment contract (hereinafter: the Contract) valid as
from said date until the end of the sporting season 2023/2024 in Egypt.
2.
According to the Contract, for the season 2021/2022, the Claimant would be entitled to a
total salary of USD 94,284 broken down into 4 instalments of USD 23,571 each to be paid
as follows:
•
•
•
•
30 January 2022
1 February 2022
1 April 2022
1 August 2022
3.
Furthermore, the parties stipulated that for remaining duration of the Contract, i.e., until
the end of the season 2023/2024, the Claimant would be entitled to a total remuneration
of USD 278,577.
4.
In addition to the above, pursuant to art. 6 of the Contract, the Respondent undertook to
pay the Claimant the following sums:
5.
•
EGP 10,000 (Egyptian Pounds) per month as housing allowance;
•
USD 40,000 as bonus for participating to at least 75% of the games played by the team
during the season 2022/2023;
•
USD 46,667 as bonus for participating to at least 75% of the games played by the team
during the season 2023/2024;
•
USD 1,000 as bonus for each goal scored by the Claimant, to be paid at the end of
each relevant month;
•
Two roundabout flight-tickets for the Claimant and his wife for each of the contractual
seasons.
By correspondence dated 13 June 2022, the Claimant put the Respondent in default of
payment of USD 26,571 and EGP 10,000, contextually setting a deadline of 15 days in
order to remedy the default.
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6.
On 29 June 2022, the Claimant notified the Respondent the unilateral termination of the
Contract because of the overdue payables. Contextually the Claimant ended his housingrental agreement and left Egypt in the same date.
7.
On 1 August 2022, the Claimant concluded a new employment agreement with the Qatari
club Al-Rayyan, valid as from said date until 30 June 2023.
II. Proceedings before FIFA
8.
On 14 July 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
9.
According to the Claimant, the Respondent did not comply with its financial obligations,
systematically delaying in the payment of several salaries or even failing to realize some
of them.
10. Furthermore, the Claimant argued that the Respondent also failed to provide a response
to the Claimant’s countless attempts for communication, so silently escaping from its
financial liabilities.
11. In this context, the Claimant stated that at the date of termination of the Contract, i.e., 29
June 2022, the Respondent had failed to pay:
•
USD 23,571 as third instalment due for the season 2021/2022 (due by 1 April 2022).
•
USD as outstanding bonuses for the 3 goals scored by the Claimant on 20
February, 3 March and 28 April 2022 (each due at the end of the relevant month).
•
EGP 10,000 as housing allowance for the month of May 2022.
12. In this respect, the Claimant held that at the time of the letter of default dated 13 June
2022, the debts owed by the Respondent amounted to more than 2 monthly salaries
calculated pro-rata, hence he had just cause to terminate the Contract not only because
of the misconduct of the Respondent, but also in accordance with the criteria established
by art. 14 bis of FIFA Regulations on the Status and Transfer of Players.
13. Accordingly, the requests for relief of the Claimant were the following (free translation
from Spanish):
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As outstanding remuneration
USD 23,571 as third instalment due for the season 2021/2022 due by 1 April 2022;
USD 17,195.24 as pro-rata of the fourth instalment due by 1 August 2022 and
corresponding to the period between 1 April 2022 and 29 June 2022 (USD 23,571.00/122
days x 89 days = USD 17,195.24);
3,000 USD as outstanding bonuses for the 3 goals scored by the Claimant on 20 February,
3 March and 28 April 2022 (each due at the end of the relevant month);
EGP 19,666.67 as housing allowance from 1 May 2022 until 29 June 2022;
EGP 4,000 as outstanding bonus for participation in the match won on 26 June 2022
against Misr El-Makasa, in which the applicant player was called up;
5% interest per annum as from 29 June 2022 until the date of effective payment;
As compensation for termination of the contract with just cause
USD 6,375.76 as residual part of the fourth instalment, calculated pro-rata for the period
between 30 June 2022 and 1 August 2022 (23,571 USD/122 days x 33 days x 33 days =
6,375.76 USD);
USD 278,577 as residual value of the Contract until the season 2023/2024;
EGP 333,33 as housing allowance due for the last day of June 2022;
EGP 240,000 as housing allowance for the residual value of the Contract (i.e. 1 July 2022 –
30 June 2024);
5% interest per annum as from 29 June 2022 until the date of effective payment.
b. Position of the Respondent
14. Despite being invited to do so, the Respondent did not reply to the claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 13 July 2022 and submitted
for decision on 29 September 2022. Taking into account the wording of art. 25 of the June
2022 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.
16. 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 Regulations on the Status and Transfer of Players (July 2022 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
Spanish-Palestinian player and an Egyptian club.
17. 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 (July 2022 edition), and
considering that the present claim was lodged on 13 July 2022, the same edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
18. 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
19. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
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i. Main legal discussion and considerations
20. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that on 11 January 2022, the Claimant and the
Respondent stipulated an employment agreement to be valid until the end of the season
2023/2024.
21. In this context, the Chamber noted also that on 29 June 2022 the Claimant unilaterally
terminated the Contract, allegedly because of the Respondent’s failure to comply with the
financial obligations set under the same Contract.
22. In this respect, the DRC observed that the Respondent failed to present its response to
the claim of the Claimant, in spite of having been invited to do so. By not presenting its
position to the claim, the Chamber was of the opinion that the Respondent renounced its
right of defence and, thus, accepted the allegations of the Claimant.
23. Accordingly, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the Claimant, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of
the Regulations had in fact been fulfilled.
24. 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
obligation(s).
25. In this context, the Chamber noted that the Claimant claims not having received his
remuneration corresponding to the third instalment of the remuneration stipulated for
the season 2021/2022, the housing allowance due for the month of May 2022 and the 3
bonuses due for the relevant goals scored during the said season. Furthermore, the
Chamber noted that the Claimant has provided written evidence of having put the
Respondent in default on 13 June 2022, i.e., at least 15 days before unilaterally terminating
the contract on 29 June 2022.
26. In this respect, the Chamber wished to remark that art. 14 bis par. 1 of the Regulations
refers to unpaid and outstanding salaries only, hence the delayed payment of other forms
of remuneration which appear conditional and not periodical, e.g., bonuses for goals
scored, shall not be included in the definition of outstanding salaries worded thereto.
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27. Accordingly, considering the wording of art. 14bis par. 2 of the Regulations and the fact
that the Claimant’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 23,571
claimed corresponded to less than two monthly salaries, hence the DRC established that
the criteria set under art. 14bis of the Regulations were not met.
28. Nevertheless, the DRC observed that the Respondent did not maintain its obligations in
accordance with the Contract and failed to pay several amounts in addition to the
outstanding salaries aforementioned, namely the bonuses matured in relation to the
goals scored by the Claimant as well as the housing allowance for the entire month of
May 2022.
29. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14 of the regulations, due to the Respondent’s repeated breach
of its financial commitments.
ii. Consequences
30. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
31. 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 the third
instalment of the remuneration stipulated for the season 2021/2022, the housing
allowance due for the month of May 2022 and the 3 bonuses due for the relevant goals
scored during the said season in accordance with art. 6 of the Contract.
32. Furthermore, the Chamber wished to remark that, for reasons of procedural economy,
having the termination of the Contract occurred on the second last day of June 2022, the
housing allowance due for the relevant month shall be included in the calculation of the
outstanding amounts.
33. As a consequence, and pursuant to 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 26,571
and EGP 20,000.
34. 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 29 June 2022 until the date of
effective payment.
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35. 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.
36. 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.
37. 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.
38. 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 302,148 (i.e. the residual value of the Contract) serves
as the basis for the determination of the amount of compensation for breach of contract.
39. 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.
40. Indeed, the player found employment with the Qatari club Al-Rayyan. In accordance with
the pertinent employment contract, the player was entitled to a total remuneration of
USD 400,000. Therefore, the Chamber concluded that the player mitigated his damages
in the total amount of USD 400,000, which exceeds the residual value of the prematurely
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terminated Contract. Therefore, the mitigation can only be considered to the amount of
USD 302,148.
41. 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.
42. In this respect, the DRC decided to award the amount of additional compensation of USD
37,713, i.e. three times the monthly remuneration of the player as calculated pro-rata by
the Chamber (i.e. USD 12,571 x 3).
43. 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 37,713to the player (i.e. USD 302,148 minus USD 302,148 plus USD 37,713), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
44. In addition, the Chamber established that also the residual value of the housing
allowances shall be paid by the Respondent, namely because the parties had stipulated a
fixed amount under art. 6 of the Contract, i.e. EGP 10,000 per month, that the Claimant
de facto lost at the moment of terminating the Contract.
45. Accordingly, the DRC determined that a total of EGP 240,000 shall be awarded to the
Claimant as compensation for the loss of the residual housing allowance (i.e. EGP 10,000
x 24 months).
46. 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 13 July 2022 until the date of effective payment.
iii. Compliance with monetary decisions
47. 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.
48. 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
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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.
49. 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 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.
50. 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.
51. 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
52. 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.
53. 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.
54. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Yaser Mohamed Hamed, is partially accepted.
2.
The Respondent, El Masry Sporting Club, has to pay to the Claimant, the following amount:
USD 26,571 as outstanding remuneration plus 5% interest p.a. as from 29 June 2022 until
the date of effective payment;
EGP 20,000 as outstanding housing expenses plus 5% interest p.a. as from 29 June 2022
until the date of effective payment;
USD 37,713.60 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 13 July 2022 until the date of effective payment;
EGP 240,000 as compensation (housing allowance) for breach of contract without just
cause plus 5% interest p.a. as from 13 July 2022 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.
2.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
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
article 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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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 17 of the Procedural Rules).
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