Dispute Resolution Chamber
Texto da decisão
REF 20-1842
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021
regarding an employment-related dispute concerning the player Hossam Ashraf
Mahmoud Elgamy
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Stefano Sartori (Italy), member
Muzammil bin Mohamed (Singapore), member
CLAIMANT:
Nkufo Academy Sports, Cameroon
Represented by Eleven & Law
RESPONDENT 1:
Hossam Ashraf Mahmoud Elgamy, Egypt
Represented by Nasr Assam
RESPONDENT 2:
Zamalek SC, Egypt
Represented by Nasr Assam
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I.
FACTS OF THE CASE
1.
On 31 December 2017, the Egyptian player Hossam Ashraf Mahmoud Elgamy (hereinafter: the
player or First Respondent) and the Egyptian club Zamalek SC (hereinafter: Zamalek or Second
Respondent) signed an employment contract until 30 June 2020.
2.
On 10 January 2020, the player and the Cameroonian club Nkufo Academy Sports (hereinafter:
the Claimant or Nkufo) signed an employment contract valid as from 1 July 2020 until 30 June
2024 (hereinafter: the Nkufo Contract).
3.
According to Clause 4 of the Nkufo Contract, the player is entitled to a monthly salary of USD
2,000.
4.
Clause 7 of the Nkufo Contract states as follows (quoted verbatim):
“7.1 This Contract may be terminated either upon the expiry of its natural term, by mutual
agreement between the parties, or unilaterally by one of the parties for reasons of just cause or
sporting just cause according to the regulations of the FECAFOOT and/or FIFA.
7.2 If the Player unilaterally terminates this contract without just cause and registers for another
club, pursuant to the applicable labour or sport regulations the Player shall pay the Club the
following amounts as compensation:
- EUR 4,000,000 if the termination without just cause occurs during the first contractual year;
- EUR 3,500,000 if the termination without just cause occurs during the second contractual
year;
- EUR 3,000,000 if the termination without just cause occurs during the third contractual year;
- EUR 2,500,000 if the termination without just cause occurs during the fourth contractual year;
To this effect, the Player agrees to expressly disclose this clause to any club that may be
interested to register him under such circumstances.
7.3 If the Club unilaterally terminates this contract without just cause, the Club shall pay the
Player an amount of compensation corresponding to the residual value of the contract.”
5.
On 23 January 2020, the player and Zamalek signed a new employment contract valid “until
the end of the 2022/2023 season” (hereinafter: the Zamalek Contract).
6.
As per Clause 2 of the Zamalek Contract, the player shall be entitled to remuneration in the
amount of Egyptian Pounds (“EGP”) 5,050,860, broken down as follows:
a.
b.
c.
d.
For the remaining of season 2019/2020: EGP 792,792
For season 2020/2021: EGP 1,032,260
For season 2021/2022: EGP 1,290,324
For season 2022/2023: EGP 1,935,484
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7.
On 6 February 2020, after being aware of the signature of the Zamalek contract, an agent
acting for Nkufo (hereinafter: the Agent) contacted the player and the player’s father via
WhatsApp informing them that the Nkufo Contract was valid and by signing the Zamalek
contract, the player was in breach.
8.
On or around 17 August 2020, the player and Zamalek signed a new contract, further amending
the Zamalek Contract.
9.
On 17 November 2020, the Claimant’s counsel contacted the player and Zamalek stating that
the Player had breached the Nkufo Contract and that Zamalek had induced him to do so. Thus,
the Claimant requested the payment of EUR 4,000,000 within 15 days as compensation
pursuant to Article 7.2 of the Nkufo Contract, to no avail.
II.
10.
PROCEEDINGS BEFORE FIFA
On 18 December 2020, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
11.
According to the Claimant, the Nkufo Contract was a valid contract as it contained all the
essentialia negotti.
12.
In support of the existence of the Nkufo Contract, the Claimant provided the scanned version
of the agreement, videos of the player and pictures of the signature of said contract by the
player.
13.
Furthermore, Nkufo states that the player initially acknowledged the existence and validity of
the Nkufo Contract in the WhatsApp conversations between the Agent, the player and the
player’s father. The Claimant clarified that even though the player deleted the WhatsApp
messages thereafter, the Claimant provided “screenshots” of the conversations.
14.
In the opinion of the Claimant, by signing the Zamalek Contract after the Nkufo Contract, the
player had breached the latter, as both contracts covered the same period of time.
15.
Regarding the compensation requested, the Claimant states that Clause 7 of the Nkufo
Contract constitutes a valid penalty clause because “Under Swiss law, a liquidated-damaged
clause is valid if four conditions are met: (i) the contractual parties are named, (ii) the type of
penalty has been determined, (iii) the conditions triggering the obligation to pay it are set and
(iv) its measure is identifiable”.
16.
The Claimant further states that in accordance with CAS jurisprudence, reciprocity does not
constitute a condition of validity of a liquidated-damages clause. It is further argued that, the
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CAS considers that “Swiss law does not require penalty clauses to be reciprocal in order to be
valid”.
17.
In the view of the Claimant, the penalty stated in Clause 7 is not excessive, hence art. 163 of
the Swiss Code of Obligations (“CO”) shall not be applied.
18.
Lastly, the Claimant states that the player was going to become the most valuable asset of its
club, he had the highest remuneration at the club and that the breach damaged the club’s
reputation.
19.
The Claimant’s prayers for relief are:
“Preliminary
-
Order the Egyptian Football Association to submit all employment contracts signed by the
Player and Zamalek as from January 2020 and covering the period from 1 July 2020;
And then hold that:
-
-
The Player has unilaterally and prematurely breached the contract with the Claimant
without just cause and during the protected period;
The Player shall pay compensation to the Claimant in the amount of EUR 4,000,000, plus
an interest of 5% per annum as from 1 July 2020 until the date of effective payment;
Zamalek shall be held jointly liable to the payment of the compensation under point 2;
The Player shall be restricted from playing official matches for a minimum of four months;
Zamalek shall be banned from registering new players either nationally or internationally,
for two entire and consecutive registration periods;
All costs relating to the present procedure shall be carried by the Player and Zamalek”
b.
Position of the First Respondent
-
20.
According to the First Respondent, he never signed the Nkufo Contract and it is a forgery. In
this regard, the player states that the WhatsApp messages submitted by the Claimant “cannot
establish beyond doubt that an agreement has taken place”.
21.
Furthermore, the player states that there is no “logic” in leaving a top tier club in Egypt for a
not top tier club in Cameroon.
22.
The player states that if the Nkufo Contract is deemed as signed, it was not valid because in
accordance with the Cameroonian law as well as the Egyptian law, the age of majority is 21.
Hence the father/guardian should have signed it too.
23.
Moreover, the player states that Nkufo breached the art. 18 par. 3 of the Regulations for the
Status and Transfer of Players (RSTP), because it signed a contract more than 6 months before
the season ended.
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24.
Additionally, the player argues that if the Nkufo contract was signed and is valid, it was
“implicitly cancelled” as the club did not have any original copy of the agreement nor did he
register it on Transfer Matching System (“TMS”).
25.
Subsidiarily to all the above, the player submits that the penalty clause of Clause 7 is
disproportionate. According to the player, “one could not possibly think that the player would
agree to be restrained by a termination clause which imposes up to EUR 4,000,000 as
compensation for termination”. On the other hand, the Claimant would only have to pay the
residual value of the contract concerned.
26.
In the view of the player, “it’s crystal clear that the Player would not willingly accept to be put
under such unfair disadvantage vis-à-vis the Claimant”.
27.
The player makes reference to the “lesion principle” which is referred to implicitly under article
24 CO which is defined as "an imbalance or disparity between the performances performed on
two sides."
28.
The player further states that “If FIFA was not convinced that the Player could've never signed
or agreed on such horrendous terms, it should at least consider the relevant stated factors above
to consider the alleged Contract to be null and void”.
29.
In the view of the player, he was “clearly subject to fraud”. Furthermore, it submits that “Even
if FIFA DRC considers that the alleged Contract to be signed and valid, it would certainly raise
the question on why wouldn't the Claimant have the original version and be so negligent to
leave the player with two versions of the alleged Contract”
30.
The player argues that the Claimant intended to “mislead the Panel in making it believe that it
had indeed fulfilled the requirements regarding the notification of an alleged breach which is
the proper notification as per the wording of article 102 of the SCO”. However, in his view,
“the behaviour of the Claimant makes it obvious that it did not intended to act loyal for the
above mentioned reasons”.
31.
Lastly, the player refers to Clause 7 of the Nkufo Contract and considers that it is “notably
disproportionate, unreasonable, unjust and abusive to the Player” as it establishes a
compensation 42 times higher for the club than for the player.
32.
The player’s request for relief are:
“In the light of all the above and also under consideration of the factual and legal aspects as
outlined in our present position, we respectfully request the FIFA Dispute Resolution Chamber on behalf Respondent I, the Player – to rule as follows:
1. To fully reject the Claimant's claims.
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2. To consider that there's no valid contract concluded between the Claimant and the
Respondent I and that no sum or compensation of whatsoever kind related to the Claimant's
claims.
3. Alternatively, to consider that the alleged Contract is null and void and that no compensation
shall be paid.
4. Alternatively, to consider the Contract to be implicitly cancelled for loss of interest.
5. Alternatively, to consider that both parties are in breach and thus no one shall pay any
compensation whatsoever.
6. To not impose any sanction on Respondent I.
7. Alternatively, to consider Clause 7 to be invalid.
8. Alternatively, to re-assess Clause 7 in a proportionate manner.
9. As per all the above, the Claimant shall borne any and all costs of the present proceedings”.
c. Position of the Second Respondent
33.
Zamalek’s requests for relief are to be summarised as follows.
34.
First, Zamalek considers that there is no agreement between the player and Nkufo. In its view,
“we can logically deduce that in no way the Player could've willingly agreed on such terms, in
application of the lesion principle, as they are completely disproportionate”.
35.
Zamalek states that the Claimants allegations are “based on non-objective and unreliable
evidences which are the WhatsApp screenshots which shows no identification nor photo of the
Addressee and that could be easily altered / forged by the Claimant to make it seem as if the
Player or his father are the one who have responded to the Claimant's agent”.
36.
Furthermore, the employment contract between Zamalek and the player was due to finish “at
the end of the 2020 season”, which eventually happened on 31 October 2020, and not on 30
June 2020. Thus, the Claimant had breached art. 18 par. 3 RSTP.
37.
Zamalek argues that the Nkufo Contract shall be null and void, or apply the well-established
principle nemo auditur propriam turpitudinem allegans and consider both parties to be in
breach and that “no one is entitled to compensation”.
38.
Zamalek states that it shall not be jointly liable as the player never informed Zamalek of the
signing of the Nkufo Contract. The alleged inducement by Zamalek “is a simple presumption
that can easily overturned when proven the contrary”
39.
In the view of Zamalek, “it has established to the contrary that it did not induce the Player
(assuming that it had signed the alleged Contract), therefore, it would be contrary to the
principle of justice and fairness to associate Respondent II to the actions done by Respondent
I”. Accordingly, Zamalek pleads that no compensation and no sporting sanctions shall be
imposed on it.
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40.
Moreover, Zamalek further argues that FIFA DRC should in application of the principle
requirement of "l'effet relatif de contrat" disregard the provision stated in clause 7, which
stipulates that the Player should have informed the new club of this clause.
41.
Furthermore, Zamalek states that it “couldn't have possibly induced the Respondent I to
conclude a new contract with it since as admitted by the Claimant in para 1 and 3 of its merits,
the alleged Contract was never registered so the Respondent II couldn't have known its
existence through TMS and the Claimant never informed nor notified Respondent II of it
contracting and negotiating with the Player which is in itself a breach”.
42.
Zamalek further argues that “How can anyone with rational common sense consider that a
clause granting the Claimant 4,000,000 euros in compensation for termination (7.2) while
granting the Respondent I only the residual value of the contract in compensation for
termination (7.3) to be proportionate and not excessive, as stated by the Claimant?”
43.
According to Zamalek, the residual value of the Nkufo Contract is EUR 96,000 which “is nothing
compared to 4,000,000 EUR (which is nearly 42X higher than the residual value)”.
44.
Lastly, Zamalek states that “assuming the alleged Contract was signed, there were superior
bargaining power in favour of the alleged Claimant's agents as the Respondent I was only 18
years old (minor according to Egyptian and Cameroonian laws) amateur player without his
father or any legal representatives assisting him, while the other are expert in their field”.
45.
The Second Respondent request for relief were:
“In the light of all the above and also under consideration of the factual and legal aspects as
outlined in our present position, we respectfully request the FIFA Dispute Resolution Chamber on behalf Respondent II, Zamalek SC – to rule as follows:
1. To fully reject the Claimant's claims.
2. To consider that Claimant in breach to FIFA regulations and no agreement had been signed
between the Claimant and the Player.
3. To consider that no compensation whatsoever shall be paid by the Respondents and no
sporting sanctions shall be imposed on Zamalek SC
4. Alternatively, to consider that both parties are in breach and thus no one shall pay any
compensation whatsoever
5. Alternatively, if it deemed that the Player committed a breach, to consider that Respondent
II is not jointly and severally liable and shall not be subject to any sanctions.
6. Alternatively, if it deemed Respondent I & II liable, to consider Clause 7 to be void.
7. Alternatively, to re-assess Clause 7 in a proportionate manner”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
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46.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 18 December 2020 and submitted for decision
on 3 June 2021. Taking into account the wording of art. 21 of the January 2021 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules
is applicable to the matter at hand.
47.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition February 2021), 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 Cameroonian club and
an Egyptian player, with the involvement of an Egyptian club.
48.
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 Player (edition February 2021), and considering that
the present claim was lodged on 18 December 2020, the October 2020 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b.
Burden of proof
49.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art. 12
par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the
parties.
50.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of
the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to
the application of the Regulations, any documentation or evidence generated or contained in
TMS.
c.
51.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the DRC
entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
DRC 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.
i. Main legal discussion and considerations
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52.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the existence and validity of the Nkufo
Contract.
53.
In this context, the Chamber acknowledged that in order to make a decision on this matter, its
task was to answer the following questions.
a. Did the player sign the Nkufo Contract?
b. In the affirmative, was it valid?
c. In the affirmative, did the player breach the Nkufo Contract by signing the Zamalek
Contract?
d. In the affirmative, what consequences shall arise for the player and for Zamalek?
Did the player sign the Nkufo contract?
54.
Based on the evidence on file, the Chamber was comfortably satisfied of the fact that the player
indeed signed the Nkufo Contract. The DRC reached this conclusion by giving weight to the
different ancillary evidence provided by the Claimant, such as the scanned version of the
contract, video footage of the signature, pictures of the player and WhatsApp messages.
55.
By examining these, the DRC drew the following conclusions:
a. All documentation remitted shall be considered with free discretion and, therefore, in line
with the copy of the Nkufo Contract as well as the other documents containing the player’s
signature, by comparing the relevant signatures, the DRC had no other option but to
conclude that for a layman, and in the contrary of the player’s point of view, the player’s
signatures on the various documents available, including the challenged document, seem
to be alike;
b. The footage of the player signing a document which apparently matches with the Nkufo
Contract provided. The different elements included in the contract such as the player’s
signature on the different pages and the player’s fingerprint appear extremely alike.
c. The text messages exchanged between the Agent and the player confirmed that the player
was aware of the existence and execution of the Nkufo Contract. In particular, the player
makes states that he has the original and furthermore, in one of the messages the player
states “this is not a genuine contract” without providing any further explanation on why
this could be the case.
56.
In this regard, the Chamber noted that it was not its duty to determine the rationale or logic
behind the player to signing for Nkufo as suggested by Zamalek, but solely to conclude if said
contract was indeed executed.
57.
Moreover, the player and Zamalek had - in Chamber’s view - failed to provide sufficient
documentary evidence, on the basis of which it could be concluded that the Nkufo Contract
had not been signed at all.
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58.
Hence, the Chamber was convinced of the fact that the player signed the Nkufo Contract.
In the affirmative, was it valid?
59.
Having established that a valid contract was signed, the Chamber proceeded to determine if
the Nkufo Contract shall be found to be valid or invalid based on the arguments raised by the
parties.
60.
By doing so, the Chamber recalled that in order for an employment contract to be considered
as valid and binding, apart from the signature of both the employer and the employee, it should
contain the essentialia negotii of an employment contract, such as (but not limited to) the parties
to the contract and their role, the duration of the employment relationship and the
remuneration agreed upon between the parties. After a careful study of the copy of the Nkufo
Contract presented by the Claimant, the members of the Chamber concluded that all such
essential elements are included in the pertinent document, in particular, the fact that the
contract establishes that the player is entitled to receive remuneration in exchange for his
services to Nkufo as a player.
61.
Thus, the DRC found that against the arguments raised by both the First and the Second
Respondent, the Nkufo Contract shall be found valid, as it contains all the essentialia negotii
and the player was 18 years of age when he signed it and according to Swiss law, major and
legally independent, and valid a contrario sensu of art. 18 par. 2 of the Regulations.
62.
The Chamber then recalled its longstanding jurisprudence, according to which the validity of an
employment contract cannot be made subject to administrative formalities, such as, in casu, the
registration of a player on TMS or the delivery of the original copy as argued by the Respondents.
63.
As for the arguments from the Respondents of Nkufo having breached art. 18 par. 3 of the
Regulations, the DRC found that these should be dismissed. At the time of the signature of the
Nkufo Contract, the situation which arose out of the Covid-19 worldwide pandemic was an
unexpected event that could not have been foreseen by anyone. The same would apply for the
consecutive extension of the season. What is more, even if a literal interpretation of the art. 18
par. 3 of the Regulations would be applied, without keeping in mind the relevant circumstances
surrounding the signing of the contract, it would need to be established that both Nkufo and
the player would have been in breach of art. 18 par. 3 of the Regulations. In view of all the
foregoing circumstances, the Chamber decided that Nkufo and the player acted in line with the
Regulations when they signed the Nkufo Contract.
64.
As a consequence of the foregoing, the DRC deemed that the Nkufo Contract was valid and
binding on the parties and thus fully enforceable.
In the affirmative, did the player breach the Nkufo Contract by signing the Zamalek Contract?
65.
Following the aforementioned considerations, the DRC proceeded to determine if the Nkufo
Contract was breached by the player.
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66.
In this regard, the Chamber concluded that it was undisputed that the player and Zamalek
signed the Zamalek Contract on 23 January 2020. Equally, the parties in their submissions
confirmed the execution of such contract.
67.
Having analysed the respective contracts on file, the members of the Chamber were of the
opinion that Clause 7 of the Nkufo Contract imposes on the player the obligation to inform any
potential new club, regardless of the fact that the new club was the one with an existent
employment relationship with the player. Therefore, the player and Zamalek shall bear the
consequences of the player’s conduct.
68.
Moreover, the Chamber was eager to refer to its longstanding and well-established
jurisprudence, and emphasised that a party signing a document of legal importance without
knowledge of its precise contents, as a general rule, does so on its own responsibility.
69.
According to art. 18 par. 5 of the Regulations: “If a professional enters into more than one
contract covering the same period, the provisions set forth in Chapter IV (arts. 13 – 18) shall
apply”.
70.
Taking into account all the foregoing, the members of the DRC confirmed that, based on the
previous determinations, it was clear that the player had signed two employment contracts with
different clubs for the same or overlapping period of time, which is considered to be a breach
of art. 18 par. 5 of the Regulations.
71.
Hence, in view of the foregoing, the DRC confirmed that by signing the Zamalek contract, the
player had breached the Nkufo Contract without just cause and should therefore bear the
financial and sporting consequences of his unjustified breach.
ii. Consequences
72.
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 First Respondent
during the protected period.
73.
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.
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74.
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 Clause
7 of the Nkufo contract appeared to contain a compensation clause on the following terms:
If the Player unilaterally terminates this contract without just cause and registers for another
club, pursuant to the applicable labour or sport regulations the Player shall pay the Club the
following amounts as compensation:
- EUR 4,000,000 if the termination without just cause occurs during the first contractual year;
- EUR 3,500,000 if the termination without just cause occurs during the second contractual
year;
- EUR 3,000,000 if the termination without just cause occurs during the third contractual year;
- EUR 2,500,000 if the termination without just cause occurs during the fourth contractual year;
To this effect, the Player agrees to expressly disclose this clause to any club that may be
interested to register him under such circumstances.
If the Club unilaterally terminates this contract without just cause, the Club shall pay the Player
an amount of compensation corresponding to the residual value of the contract.”
75.
As per the terms of the aforementioned clause, the Chamber acknowledged that parties had
agreed different compensations depending on who was the party in breach. On the one hand,
Nkufo would receive no less than EUR 2,500,000 if the player were to terminate the contract
without just cause. On the other hand, the player’s maximum compensation in the event of
breach of contract without just cause by the Claimant is set out at residual value. Therefore, the
clause appears not to comply with the pre-requisite of reciprocity.
76.
Furthermore, the Chamber noted that it provides for an amount substantially higher than the
player’s annual remuneration – varying from EUR 2,500,000 to EUR 4,000,000 – and then the
amount paid by the Claimant for the services of the player for a period of 4 years – EUR 96,000.
In this respect, the Chamber concluded that the clause does not to comply with the pre-requisite
of proportionality.
77.
Based on the aforementioned considerations, the Chamber concluded that such compensation
clause was not applicable in the present matter as it does not comply with the pre-requisites of
proportionality and reciprocity.
78.
As a consequence, the Chamber determined that the amount of compensation payable in the
case at stake 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. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body. In this regard, the Chamber stated beforehand that each
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request for compensation for contractual breach has to be assessed by the Chamber on a caseby-case basis taking into account all specific circumstances of the respective matter.
79.
In order to estimate the amount of compensation due to the Claimant in the present case, the
Chamber first turned its attention to the financial terms of the Nkufo Contract and the Zamalek
Contract, the value of which constitute an essential criterion in the calculation of the amount
of compensation in accordance with art. 17 par. 1 of the Regulations. The Chamber deemed it
important to emphasise that the relevant compensation should be calculated based on the
average fixed remuneration, i.e. excluding any conditional or performance related payment,
agreed by the player with his former club and his new club, as well as considering the period of
time remaining on the contract signed between the player and Nkufo.
80.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the fixed
remuneration payable to the player under the terms of both contracts, for the period between
1 July 2021 and 30 June 2024 (i.e. 48 months). In this particular, and only for the purposes of
these calculations, the Chamber stated that it would extend the Zamalek Contract in order for
both to have the same end date. For the sake of completeness, the Chamber wished to clarify
that in order to properly calculate the amounts due under both contracts, in accordance with
the jurisprudence of the DRC, it was necessary to consider the amounts due to the player under
the Zamalek Contract for the same period of time remaining in the Nkufo Contract, i.e. from 1
July 2021 until 30 June 2024. In other words, the DRC clarified that in order to properly calculate
the average of the amounts due to the player under both the former and the new contract, it
had to (fictionally) extend the period of the Zamalek Contract to match the original term of the
second contract.
81.
In this regard, the Chamber noted that, as per the Nkufo Contract, the player was entitled to
his remuneration for the whole duration of the contract (USD 2,000*48 months= USD 96,000),
approximately equivalent to EUR 78,998.
82.
In continuation, the Chamber noted that as per the Zamalek Contract, the player was entitled
to the total amount stated in Clause 2, which is EGP 5,050,860. In addition of EGP 1,935,484
(i.e. fictional additional year), equals EGP 6,986,344, approximately equivalent to EUR 365,945.
83.
Taking into account the above, the Chamber concluded that, for the relevant period, the
player’s average remuneration amounts to EUR 222,471.
84.
Furthermore, with regard to the criterion relating to the fees and expenses allegedly paid by the
Claimant for the acquisition of the player’s services, the Chamber took due note that Nkufo did
not have to pay any transfer fee to another club in order to secure the transfer of the player.
Thus, no amount should be considered for amortisation for this concept.
85.
Based on the foregoing, the Chamber deemed that the final compensation amount due to
Nkufo shall be established at EUR 222,471.
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86.
Considering the Claimant’s request and the constant practice of the Chamber, 5% interest per
annum shall apply over the amount of previous amount as from the date of claim, i.e. 8 February
2021.
87.
In continuation, the Chamber turned its attention to art. 17 par. 1 of the Regulations, according
to which the player is liable to pay compensation to Nkufo. Furthermore, pursuant to the
unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the
player’s new club, i.e. Zamalek, shall be jointly and severally liable for the payment of
compensation. In this respect, the Chamber was eager to point out that the joint liability of the
player’s new club is independent from the question as to whether the new club has committed
an inducement to contractual breach or any other kind of involvement by the new club. This
conclusion is in line with the jurisprudence of the DRC, which has been repeatedly confirmed
by the Court of Arbitration for Sport (CAS). Notwithstanding, the Chamber recalled that in
accordance with art. 17 par. 2 of the Regulations, it should be assumed that, unless otherwise
proven, any club that signs a contract with a professional player who has terminated his/her
contract without just cause has induced the player to terminate such contract.
88.
On account of all the aforementioned considerations and specificities of the case at hand, the
Chamber decided that the player must pay the amount of EUR 222,471 to Nkufo as
compensation for breach of contract plus interest. Furthermore, Zamalek is jointly and severally
liable for the payment of the relevant compensation
iii. Sporting sanctions
89.
In continuation, the Chamber focused its attention on the further consequences of the breach
of contract in question and, in this respect, it addressed the question of sporting sanctions
against the player in accordance with art. 17 par. 3 of the Regulations. The cited provision
stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall be
imposed on any player found to be in breach of contract during the protected period.
90.
In this respect, the Chamber referred to item 7 of the “Definitions” section of the Regulations,
which stipulates, inter alia, that the protected period shall last “for three entire seasons or three
years, whichever comes first, following the entry into force of a contract, where such contract
is concluded prior to the 28th birthday of the professional, or two entire seasons or two years,
whichever comes first, following the entry into force of a contract, where such contract is
concluded after the 28th birthday of the professional”. In this regard, the DRC pointed out that
independent of the player’s age, the breach occurred before the contract had run for 2 entire
seasons or 2 years, entailing that the unilateral termination of the contract occurred within the
protected period.
91.
With regard to art. 17 par. 3 of the Regulations, the Chamber emphasised that a suspension of
four months on a player’s eligibility to participate in official matches is the minimum sporting
sanction that can be imposed for breach of contract during the protected period. This sanction,
according to the explicit wording of the relevant provision, can be extended in case of
aggravating circumstances. In other words, the Regulations intend to guarantee a restriction on
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REF 20-1842
the player’s eligibility of four months as the minimum sanction. Therefore, the relevant provision
does not provide for a possibility to the deciding body to reduce the sanction under the fixed
minimum duration in case of mitigating circumstances.
92.
Consequently, taking into account the circumstances surrounding the present matter, the
Chamber decided that, by virtue of art. 17 par. 3 of the Regulations, the First Respondent had
to be sanctioned with a restriction of four months on his eligibility to participate in official
matches.
93.
Finally, the Chamber turned its attention to the question of whether, in view of art. 17 par. 4
of the Regulations, the player’s new club, i.e. Zamalek, must be considered to have induced the
player to unilaterally terminate his contract with the Claimant without just cause during the
protected period, and therefore shall be banned from registering any new players, either
nationally or internationally, for two entire and consecutive registration periods.
94.
In this respect, the Chamber recalled that, in accordance with art. 17 par. 4 of the Regulations,
it shall be presumed, unless established to the contrary, that any club signing a professional
player who has terminated his previous contract without just cause has induced that
professional to commit a breach. Consequently, the Chamber pointed out that the party that is
presumed to have induced the player to commit a breach carries the burden of proof to
demonstrate the contrary.
95.
In light of the aforementioned and the evidence of file, the DRC had no option other than to
conclude that Zamalek had not been able to reverse the presumption contained in art. 17 par.
4 of the Regulations. Accordingly, the Chamber decided that Zamalek had induced the player
to unilaterally terminate his employment contract with the Claimant.
96.
In view of the above, the Chamber decided that in accordance with art. 17 par. 4 of the
Regulations, Zamalek shall be banned from registering any new players, either nationally or
internationally, for the two entire and consecutive registration periods following the notification
of the present decision. The club shall be able to register new players, either nationally or
internationally, only as of the next registration period following the complete serving of the
relevant sporting sanction. In particular, it may not make use of the exception and the
provisional measures stipulated in art. 6 par. 1 of the Regulations in order to register players at
an earlier stage.
97.
In accordance with the Circular no. 1686 of 8 August 2019, art. 24bis of the Regulations does
not apply to decisions whereby sporting sanctions (registration ban or restriction to play in
official matches) are imposed on the basis of art. 17 of the Regulations, the execution of which
will still continue to be carried out by the Disciplinary Committee.
98.
Hence, the members of the Chamber decided that the Player shall be banned from playing in
official matches for a period of four-months and Zamalek shall be banned from registering new
players, either nationally or internationally, for two entire and consecutive registration periods.
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d.
99.
Costs
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance of
contractual stability as well as international employment related disputes between a club and a
player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
100. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 18 par.
4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Nkufo Academy Sports, is partially accepted.
2.
The First Respondent, Hossam Ashraf Mahmoud Elgamy, has to pay to the Claimant, within 30
days as from the date of notification of this decision, EUR 222,471 as compensation for breach
of contract without just cause plus 5% interest p.a. as from 18 December 2020 until the date of
effective payment.
3.
The Second Respondent, Zamalek SC, is jointly and severally liable for the payment of the
compensation mentioned under point 2 above.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the First Respondent and the Second
Respondent of the relevant bank account to which the First Respondent and the Second
Respondent must pay the due amount.
6.
The First Respondent and the Second Respondent shall provide evidence of payment of the due
amount in accordance with this decision to [email protected], duly translated, if applicable, into
one of the official FIFA languages (English, French, German, Spanish).
7.
If the aforementioned sum plus interest is not paid within the above-mentioned time limit, the
present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its
consideration and a formal decision.
8.
A restriction of four months on his eligibility to play in official matches is imposed on the First
Respondent. This sanction applies with immediate effect as of the date of notification of the
present decision. The sporting sanctions shall remain suspended in the period between the last
official match of the season and the first official match of the next season, in bot cased including
national cups and international championships for clubs.
9.
The Second Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
10. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF 20-1842
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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