Labour Disputes
Texto da decisão
REF. FPSD-15238
Decision of the
Dispute Resolution Chamber
passed on 30 October 2024
regarding an employment-related dispute concerning the player Ahmed
Hassan Mohamed Abdelmonem Mohamed Mahgoub
BY:
Dana MOHAMED AL-NOAIMI (Qatar)
CLAIMANT:
Ahmed Hassan Mohamed Abdelmonem Mohamed Mahgoub, Portugal
Represented by Xavier Ferreira
RESPONDENT:
Pendikspor Futbol A.Ş., Türkiye
Represented by Ercan Sevdimbaş
pg. 2
REF. FPSD-15238
I. Facts of the case
1.
On 15 September 2023, the Portuguese player Ahmed Hassan Mohamed Abdelmonem
Mohamed Mahgoub (hereinafter: Claimant or player) and the Turkish club Pendikspor
Futbol A.Ş (hereinafter: club or Respondent) concluded an employment contract
(hereinafter: contract) valid as from 15 September 2023 to 30 June 2024.
2.
According to the player, on 9 February 2024, the Parties concluded an agreement titled
Termination and Settlement Agreement for Protocol (hereinafter: termination and
settlement agreement).
3.
According to the termination and settlement agreement, the Respondent undertook to pay
the Claimant (quoted verbatim):
“the parties have agreed that the player has a total receivable of net 285.000.- euro,
consisting of 160.000- euro as salary (october, november, december, january salaries), and
net 125.000-euro as balance down payment in relation to his receivables from the club
arising from the protocol dated 15.09.2023 and its annexes. however, the club accepts,
declares and undertake that the club will pay net 100.000-euro net. the said 385.000-euro,
net 85.000-euro will be paid to the player on 15.03.2024 and net 150.000-euro will be paid
to the player by the club on 15.05.2024. (more specifically, two mutual termination
agreements have been signed by the player, this termination and settlement agreement for
protocol and the termination and settlement agreement dated 09.02.2024. net 80.000-euro
agreed in the termination and settlement agreement dated 09.02.2024 and net 385.000 euro agreed in this termination and settlement agreement will be paid to the player in total
net 465.000-euro. the said net 465.000-euro. net 165.000 (80.000-euro + 85.000-euro) will
be paid tot he player on 15.03.2024 and net 150.000-euro will be paid tot he player by the
club on 15.04.2024 and net 150.000-euro will be paid tot he player by the club on
15.05.2024) (…).”
II. Proceedings before FIFA
4.
On 16 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
5.
The Claimant initially stated and requested (quoted verbatim):
“Having said that,
Your Excellency is requested that take effective quick and effective measures to resolve this issue,
ensuring that the complainant receives his work credits in the amount of EUR. 150,000.00 (one
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REF. FPSD-15238
hundred and fifty thousand euros) to which compensation due in the form of interest accrued
and falling due must be added.”
6.
The Claimant also stated, inter alia: (quoted verbatim):
“7. According to results from the transfer bank, whose copy is attached, the termination and
settlement agreement has been effectively accept by parties, since the Club already carried out
from second installment agreed in the amount of €150,000.00.-as can be see Doc. 2 which is
added here.
8.Finding yourself in the third and final payment is missing provision, in the same amount
(€150,000.00) that should have occurred on May 15,2024 and unfortunately not occurred.
7. The Claimant provided a copy of the termination and settlement agreement signed only by
him.
8.
The Claimant provided evidence of a bank transfer made by the Respondent dated 20 May
2024 for EUR 150.000, which indicated as concept “2nd Installment pursuant to the
Termination and Settlement Agreement”.
b. Position of the Respondent
9.
In its reply, the Respondent argued that (quoted verbatim):
“The Termination and the Settlement Agreement Protocol which was claimed by the Claimant is
not signed by both Parties. Thus the Termination and the Settlement Agreement which was the
main reason of the Claimants case was built on is not legally applicable. Therefore, the
Claimant’s exorbitant and unlawful demands must be rejected.”
10. The Respondent stated that the termination notice received from the Claimant asserts the
existence of unpaid remuneration purportedly outlined in another protocol allegedly
signed by the Parties. The Respondent added that the Claimant’s assertion is unfounded
and merely an attempt to extract funds from the Club.
11. The Respondent argued that the Claimant is responsible for providing evidence of the
validity of the termination and settlement agreement as he carries the burden of proof as
stipulated in article 8 of the Swiss Civil Code and established in CAS Jurisprudence.
12. The Respondent cited a FIFA decision (Ref. FPSD-12481 dated 11 January 2024 between the
Player Jospin Nshimirimana from Burundi and the Turkish club Adana Demirspor A.S) that
was rejected by the DRC in regard to an unsigned contract.
13. Finally, the Respondent made the following request for relief (quoted verbatim):
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REF. FPSD-15238
“1. To decide the rejected of the Claimant’s application.
2. To decide that the Termination and the Settlement Agreement submitted by the Claimant and
does not include the Respondent’s signature is not legitimate and valid.”
pg. 5
REF. FPSD-15238
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge (hereinafter: the Single Judge) analysed whether she was
competent to deal with the case at hand. In this respect, she took note that the present
matter was presented to FIFA on 16 July 2024 and submitted for decision on 30 October
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.
15. Furthermore, the Single Judge 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 Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Portuguese player and a Turkish club.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she 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 16 July 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
17. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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
18. Having established the competence and the applicable regulations, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for assessing the matter at hand.
i. Main legal discussion and considerations
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REF. FPSD-15238
19. The Single Judge then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute the conclusion of the termination and settlement agreement.
20. In this context, the Single Judge acknowledged that her task was to determine whether the
termination and settlement agreement provided and signed by the Claimant in the matter
at hand was indeed concluded between the parties.
21. In this regard, on one hand, the Single Judge took note that the Claimant claims that the
parties concluded the termination and settlement agreement and that the relevant
document is indeed valid, providing a bank transfer receipt in the amount of EUR 150,000
whose concept mentions “2nd installment pursuant to the termination and settlement
agreement.”
22. On the other hand, the Single Judge observed that the Respondent argues that the Club
did not sign such document and that it should be disregarded because it is not legitimate
or valid. The Single Judge also noted that the Respondent stated that the termination notice
received from the Claimant asserts the existence of unpaid remuneration purportedly
outlined in another protocol allegedly signed by the Parties and added that the Claimant’s
assertion is unfounded and merely an attempt to extract funds from the Club.
23. In this regard, the Single Judge noted that the alleged different protocol was not provided
by the Respondent.
24. Moreover, the Single Judge pointed out that although the termination and settlement
agreement it is indeed not signed by the Respondent, there may be other elements to take
into account to determine the existence of a valid and binding agreement. In this sense,
she recalled that, according to FIFA’s well-established jurisprudence, the presence of an
actual signature on the contract is not the sole element to determine whether there was
an existing contractual relationship between the parties.
25. Additionally, the Single Judge noted that the bank transfer receipt provided by the player
specifically refers to the termination and settlement agreement as well as a specific
reference to an instalment of such agreement.
26. Furthermore, the Single Judge highlighted that the payment of EUR 150,000 corresponding
to the same amount as established in the termination and settlement agreement as the
second instalment to be paid on 15 April 2024.
27. The Single Judge also highlighted that the Respondent did not dispute or provide any
explanation about the bank transfer receipt submitted by the Claimant. Therefore, it did
not sufficiently prove having complied with the payment claimed.
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REF. FPSD-15238
28. Moreover, the Single Judge highlighted that neither the employment relationship nor its
termination is in question.
29. In light of the above, the Single Judge concluded that, by executing the bank transfer
provided by the Claimant, and thereby partially performing the agreement in question, the
Respondent acknowledged the termination and settlement agreement. Therefore, the
Single Judge deemed that the termination and settlement agreement provided and signed
by the Claimant was concluded between the Parties.
30. Consequently, taking into account the existence and validity of the termination and
settlement agreement, as well as the bank transfer receipt for the second instalment of the
termination and settlement agreement provided by the Claimant, which remained
undisputed by the Parties , the Single Judge decided to award the Claimant EUR 150,000,
corresponding to the third and last instalment of the termination and settlement
agreement and in accordance with the general legal principle of pacta sunt servanda.
31. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the Single Judge decided to award the Claimant interest at
the rate of 5% p.a. on the outstanding amount of EUR 150,000 as from 16 May 2024 until
the date of effective payment.
ii. Compliance with monetary decisions
32. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with her 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.
33. In this regard, the Single Judge 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.
34. Therefore, bearing in mind the above, the Single Judge 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.
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REF. FPSD-15238
35. 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.
36. The Single Judge 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
37. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
38. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
39. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 9
REF. FPSD-15238
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ahmed Hassan Mohamed Abdelmonem Mohamed Mahgoub, is
accepted.
2.
The Respondent, Pendikspor Futbol A.Ş., must pay to the Claimant the following amount(s):
- EUR 150,000 as outstanding remuneration plus 5% interest p.a. as from 16 May 2024
until the date of effective payment;
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-15238
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
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