Labour Disputes
Texto da decisão
REF. FPSD-16393
Decision of the
Dispute Resolution Chamber
passed on 27 November 2024
regarding an employment-related dispute concerning the Player
Emmanuel Ihearorochi Ihuzuo
COMPOSITION:
Lívia Silva Kägi (Brazil & Switzerland), Deputy Chairperson
Mario Flores Chemor (Mexico), Member
Stella Maris Juncos (Argentina), Member
CLAIMANT:
Emmanuel Ihearorochi Ihuzuo, Nigeria
Represented by Tannuri Ribeiro Advogados
RESPONDENT:
Smouha, Egypt
Represented by Mr Mohammed Mitwally
pg. 2
REF. FPSD-16393
I. Facts of the case
1.
On 25 August 2023, the Nigerian player Emmanuel Ihuzuo (hereinafter: Claimant or player) and
the Egyptian club Smouha SC (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from the date of signature, 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 a total remuneration
of USD 137,700 payable as follows:
-
3.
Season 2023/2024: USD 20,900 in 11 equal monthly instalments of USD 1,900 between 1
October 2023 and 30 July 2024, each payable on the first day of each respective month;
Season 2024/2025: USD 46,800 in 12 equal monthly instalments of USD 3,900 between 1
September 2024 and 30 July 2025 each payable on the first day of each respective month;
Season 2025/2026: USD 69,600 in 12 equal monthly instalments of USD 5,800 between 1
September 2025 and 30 July 2026 each payable on the first day of each respective month.
On the same day, the Claimant and the Respondent signed a supplementary agreement
(hereinafter: the Agreement) stipulating as follows:
“Agreement
Contrarily to the contract dated on 25/8/2023
(…)
Supplement to the contract concluded between the two parties and signed on 25/8/2023
Contract duration: 3 seasons starting on 25 August 2023
Season
First season 2023/2024
Second season 2024/2025
Third season 2025/2026
Salary
50,000 USD
90,000 USD
130,000 USD
-
The Player will be entitled to winning bonus according to 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 regulations 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
Additional bonuses
- The player will be entitled to 10,000 USD for scoring 10 goals in each season
- The player will be entitled to 10,000 USD for making 10 assists in each season
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-
On condition that Smouha SC achieves one of the first four places in the Egyptian League the
player will be entitled to 300.000 Egyptian pounds, in each season.”
4.
According to the submissions on file, “on the day before the closure of the January 2023/2024
transfer window”, the Respondent hired the Ghanaian player Justice Arthur’s services and, in
order to be able to register such player, proposed to the Claimant to be loaned out to the
Egyptian club Mahalla SC.
5.
On 30 January 2024, the Claimant joined Mahalla SC until the end of the season 2023/2024 (cf,
Transfer Matching System [hereinafter: TMS] 30 August 2024), whereas the Claimant, the
Respondent and Mahalla SC signed a tripartite agreement to this effect (hereinafter: the
Tripartite Agreement).
6.
The Tripartite Agreement was concluded on letterheaded paper of the Respondent.
7.
The introduction of the Tripartite Agreement states as follows:
“whereas [Mahalla SC] wishes to benefit from the services of the [Claimant] and transfer it from the
[Respondent] to a final transfer during the winter transfer period (January 2024) for the 2023/2024
season.”
8.
The second item of the Tripartite Agreement stipulates:
“The three parties agreed that the [Respondent] would transfer and contract with the [Claimant] (…)
and that without compensation, as the transfer was made in exchange for the player dispensing
with the rest of his dues with Smouha Club.”
9.
Moreover, the third item of the Tripartite Agreement outlines:
“the three parties agreed that the [Respondent] has the right to recover the player permanently at
the beginning of the 2024/2025 season, provided that [Mahalla SC] commits to giving the
[Respondent] a release addressed to [the Respondent] in advance and uploading it to the Egyptian
Football Association system during the beginning of the registration period for the 2024/2025
season. [Mahalla SC] does not have the right to sign the player to contracts except the current
contract only, and the player must commit to returning to [the Respondent] immediately upon
receiving the dismissal from [Mahalla SC] and signing contracts with [the Respondent] starting from
the 2024/2025 season, with the same contract as his previous contract with [the Respondent],
documented by the Egyptian Football Association.”
10. The fourth item of the Tripartite Agreement foresees:
“It is agreed upon between the [three parties] that the player is considered to sign this contract as a
final release (…) and he is not entitled to demand any financial dues from [the Respondent], as the
player was transferred in exchange for dispensing with the rest of his dues with [the Respondent].”
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REF. FPSD-16393
11. Furthermore, pursuant to the terms of such Tripartite Agreement, Mahalla SC undertook to
pay the Claimant a monthly salary of EGP 10,000 over the course of five months, between
February 2024 and June 2024.
12. Moreover, according to the Claimant, due to the modest salary under such Tripartite
Agreement, the Respondent allegedly undertook to pay the Claimant 25% of the remuneration
under the Contract (cf. Agreement) with itself during the term of the Tripartite Agreement, in
a lump sum payment at the end thereof.
13. On 30 January 2024, the Claimant joined Mahalla SC.
14. On 19 July 2024, the Claimant contacted the Respondent’s accountant in order to obtain
information concerning payment of the “remaining balance” (presumably referring to the lump
sum outlined under point 6 above). Equally, the Claimant requested the Respondent to give
him a down payment of 10% of the remuneration for the following season (2024/2025).
15. On the same day, the Respondent replied “God willing.” in respect of the lump sum payment,
and “My dear. Okay, but after this season is over.” regarding the 10% down payment.
16. On 22 July 2024, the Claimant and the team accountant further exchanged correspondence,
with the Claimant emphasizing that he needed payment of the “remaining 25%” before
departing for the summer break, and requesting return flight tickets to Abuja. The
Respondent’s accountant provided flight tickets departing on 17 August 2024 and returning
on 1 September 2024 and once again replied “God willing.” to the request for the 25%
outstanding amount.
17. On 10 August 2024, the Claimant sent an email to the Respondent requesting as follows:
18. “I am sending an email to ask about my remaining money for this season and the down payment
for the next season before I go back to Nigeria for the break. I also want to ask about the visa and
how I will get it to be able to return back to Egypt. Thank you.”
19. On 18 August 2024, after travelling to Nigeria, the Claimant sent the Respondent a reminder
regarding his previous correspondence.
20. On the same day, the Respondent replied to the Claimant, asserting that he had been
permanently transferred to Mahalla SC and that the latter should be addressed in case of any
pay discrepancy. The Respondent subsequently wished the Claimant all the best in his future
endeavours.
21. On the same day still, the Claimant reverted to the Respondent, requesting clarification of his
contractual situation, since he understood that he was on loan for a period of six months, no
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REF. FPSD-16393
mutual termination had been agreed upon and he had even been provided with a flight ticket
to return to Egypt on 1 September 2024.
22. Again on the same day, the Respondent replied, pointing out that the agreement with Mahalla
SC stipulated under Item 4 that the Claimant would be considered released from Smouha SC
and deemed to have waived his outstanding salaries. The Respondent continued by saying
that whilst it retained a right of first refusal to recall the Claimant after the expiration of this
agreement, it has not triggered such right, leading to the Claimant being a free agent.
pg. 6
REF. FPSD-16393
II. Proceedings before FIFA
23. On 2 October 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
24. According to the Claimant, the Respondent abusively terminated the Contract by failing to
reintegrate him after the expiration of the loan to Mahalla SC, and instead denying the
validity of the Contract thereafter.
25. The Claimant emphasised that the Respondent informed him that he would go on loan to
Mahalla SC to obtain more game time, and subsequently misled him into signing a
Tripartite Agreement which stated that he would be released from his contract and waive
all his financial dues.
26. The Claimant underscored that the Tripartite Agreement did not constitute a permanent
transfer agreement, but rather a loan agreement which the Respondent is manipulating to
build its argument that the Contract was terminated.
27. The Claimant equally pointed out that the fact that he “co-signed” the Tripartite Agreement
did not expressly mean that he had agreed to mutually terminate the Contract, let alone
waive his outstanding remuneration, which the Claimant stressed is not possible in
accordance with the Swiss Code of Obligations.
28. The Claimant further invoked venire contra factum proprium in arguing that the
Respondent’s accountant provided him with flight tickets to resume his activity the
following season and assured him that his outstanding remuneration would be paid, as
well as a down payment, after the Tripartite Agreement had already been concluded.
29. In conclusion, the Claimant argued that the Respondent unilaterally and unlawfully
terminated the Contract when denying the existence of the Contract and refusing to
reintegrate him into the squad following his return from Mahalla SC.
30. The Claimant formulated the following request for relief:
-
USD 12,500 outstanding remuneration (25% of the annual remuneration for
2023/2024 season);
USD 220,000 compensation for breach of contract;
Interest as from 31 August 2024;
Sporting sanctions to be imposed on the Respondent.
pg. 7
REF. FPSD-16393
b. Position of the Respondent
31. In its reply, the Respondent outlined that the Tripartite Agreement constituted a mutual
termination of the Contract, and not a loan agreement that entailed the Claimant’s return
after the end of the 2023/2024 season.
32. The Respondent emphasised that the Claimant was a signatory to such agreement and not
only agreed to mutually terminate the Contract, but more so to waive his outstanding
remuneration in the process.
33. The Respondent also pointed out that the domestic TMS in Egypt did not record the
Tripartite Agreement as a loan agreement, indicating what the parties’ intention truly was.
34. Moreover, the Respondent argued that it was not obligated to reintegrate the Claimant,
since the Tripartite Agreement only foresaw a right of first refusal concerning his services,
and that such option was not exercised, making the Claimant a free agent.
35. Consequently, the Respondent requested the dismissal of the claim.
pg. 8
REF. FPSD-16393
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
36. 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 2 October 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.
37. 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
employment-related dispute with an international dimension between a Nigerian player
and an Egyptian club.
38. 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 2 October 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
39. 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
40. 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.
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REF. FPSD-16393
i. Main legal discussion and considerations
41. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute the obligation to pay certain financial obligations under the
Contract, the validity of the Contract beyond the Claimant’s loan term and, subsequently,
the question of whether compensation may have fallen due as a result of a potential
abusive termination.
42. In this context, the Chamber acknowledged that it its task was to determine, based on the
evidence on file, what the nature of the Tripartite Agreement was, whether, based on this
conclusion, the Contract was unilaterally terminated – and if so, under what circumstances
– and lastly, what the consequences of a potentially unlawful unilateral termination of the
Contract may be.
43. Prior to entering into the merits of the dispute, the Chamber deemed it appropriate to
revisit the parties’ submissions. On one hand, according to the Claimant, the Respondent
unlawfully terminated the Contract when denying the existence of an employment
relationship and refusing to reintegrate him. The Claimant particularly challenged the
nature of the Tripartite Agreement, as well as pointing out the Respondent’s inconsistent
behaviour prior to the beginning of the 2024/2025 season – and the eventual purported
termination of the Contract.
44. On the other hand, the Respondent argued that the Claimant misinterpreted the nature of
the Tripartite Agreement and emphasized that this was not only a mutual termination of
the Contract, but equally a waiver of all outstanding amounts due to the Claimant.
45. With this in mind, the Chamber proceeded to deliberate on the merits of the present
dispute, particularly, the nature of the Tripartite Agreement.
46. In this respect, the Chamber recalled that the parties’ difference of opinions stemmed from
the fact that, whilst the Claimant asserts that the agreement gave rise to a temporary
transfer of his to Mahalla SC, the Respondent argues that this was a mutual termination
agreement.
47. The Chamber hereby observed that there appeared to be some inconsistencies in the
rhetoric of the Tripartite Agreement that put its nature in doubt. On one hand, there were
some indications which suggest that this would appear to be a permanent transfer and at
the same time a mutual termination agreement (in particular the wording of the
Introduction and the fourth item, which both refer to “final transfer” and “final release”.
48. Equally, however, the Tripartite Agreement equally outlined in the introduction and in its
third item that the scope of the agreement was Mahalla SC’s acquisition of the
Respondent’s services for the 2023/2024 season, and that the player “must commit to return
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REF. FPSD-16393
to [the Respondent] immediately upon the dismissal from Mahalla SC (…) starting from the
2024/2025 season with the same contract as his previous contract.”
49. Having closely analysed its wording, the Chamber unanimously considered that the above
wording – notwithstanding the doubts raised by the wording that may have pointed
towards a permanent transfer agreement – overwhelmingly suggests that the intention of
the Tripartite Agreement was that of a loan agreement.
50. Such conclusion was further cemented by the Respondent’s conduct after the conclusion
of the Tripartite Agreement – namely the actions of the club accountant in 1) providing the
Claimant with a flight ticket in order to return to Egypt on 1 September 2024 (the beginning
of the 2024/2025 season), and 2) seemingly agreeing to pay the Claimant a down payment
of the 2024/2025 season in the correspondence exchanged between the parties.
51. At this stage, the Chamber wished to underscore that the question of the Claimant’s waiver
of any (future) remuneration by virtue of the Tripartite Agreement became moot on
account of the fact that the Contract was considered to be in full effect after said
Agreement’s expiration.
52. With this in mind, the Chamber moved on to consider the timeliness and lawfulness of the
Contract’s termination.
53. The Chamber briefly recalled that the Claimant went on loan to Mahalla SC until the end of
the season 2023/2024 (pursuant to the information on TMS, until 30 August 2024).
54. On 18 August 2024, the Respondent informed the Claimant that he would be deemed
released from the Contract and that it had no further obligations towards him, even after
being prompted by the Claimant that the latter considered the Tripartite Agreement to only
constitute a loan and that the Respondent undertook to pay him any outstanding amounts
and a down payment for the following season.
55. Considering that the term of the loan was coming to an end, the fact that the Respondent
pre-emptively indicated that it did not consider any existing relationship with the Claimant
entailed, in the Chamber’s view, that the Respondent unilaterally terminated the Contract
on 18 August 2024.
56. As to the lawfulness of such premature, unilateral termination, the Chamber deemed it
important to revisit its own jurisprudence whereby any premature contractual termination
may only constitute an ultima ratio measure, resulting from a substantial or consistent
breach of contract by the respective counterparty. Where more lenient measures to
remedy the parties’ contractual relationship are available, the Football Tribunal’s
jurisprudence dictates that such measures shall readily be turned to rather than abruptly
putting an end to an employment relationship.
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REF. FPSD-16393
57. In the case at hand, the Respondent failed to adduce any evidence to suggest that the
Claimant had been in breach of his obligations – on the contrary, with the end of the loan
given rise to by the Tripartite Agreement nearing and correspondence being exchanged in
order to discuss the return of the Claimant to Egypt, the Respondent, suddenly and without
any valid explanation, denied the existence of the Contract altogether.
58. In conclusion, the Chamber comfortably found that the threshold of ultima ratio was not
met in the case at hand, and that the Respondent terminated the Contract without a just
cause.
ii. Consequences
59. 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.
60. The Chamber observed that, according to the Claimant, the outstanding remuneration at
the time of termination, consisted of 25% of his annual remuneration for the season
2023/2024.
61. Whilst the Chamber took due note of the fact that this was discussed in the correspondence
(and appeared to be verbally agreed upon between the parties), it found that the evidence
on file insufficiently established that the Respondent unequivocally undertook to remit
such an amount to the Claimant in writing.
62. Therefore, the Chamber concluded that the burden of proving the Claimant’s entitlement
to said amount was not met in the case at hand, and that no outstanding amounts were
due at the time when the Respondent abusively terminated the Contract.
63. 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.
64. 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
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REF. FPSD-16393
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
65. 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.
66. 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 220,000 (i.e. the residual value of the Contract – or
USD 90,000 for the season 2024/2025, and USD 130,000 for the season 2025/2026
respectively) serves as the basis for the determination of the amount of compensation for
breach of contract.
67. 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.
68. In the case at hand, the Chamber recalled that the Claimant was unable to find new
employment following the unilateral termination of the Contract, thereby resulting in
neither mitigation, nor additional compensation being applicable.
69. 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 220,000 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
70. 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 31 August 2024 until the date of effective
payment.
iii. Compliance with monetary decisions
71. 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
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
72. 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.
73. 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.
74. 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.
75. 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
76. 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.
77. 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.
78. 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, Emmanuel Ihearorochi Ihuzuo, is partially accepted.
2.
The Respondent, Smouha, must pay to the Claimant USD 220,000 as compensation for
breach of contract plus 5% interest p.a. as from 31 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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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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