Labour Disputes
Texto da decisão
FPSD-2767
Decision of the
Dispute Resolution Chamber
passed on 3 November 2021
regarding an employment-related dispute concerning the player Ahmed
Marchuh
BY:
Omar Ongaro (Italy), Deputy Chairperson
Peter Lukasek (Slovakia), member
Yuriy Zapisotskiy (Ukraine), member
CLAIMANT/ COUNTER RESPONDENT:
Ahmed Marchuh, Morocco
Represented by Mr Ali Abbes and Mohamed Rokbani
RESPONDENT/ COUNTER-CLAIMANT:
Misr Makassa, Egypt
Represented by Mr Salvatore Civale and Roberto Torenzio
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I.
Facts of the case
1. On 25 December 2018, the Moroccan player, Ahmed Marchuh (hereinafter: the Claimant/
Counter-Respondent or the Player), and the Egyptian club, Misr Makassa (hereinafter: the
Respondent / Counter-Claimant or the Club) signed an employment contract, valid for four
and half seasons starting in January 2020 valid until the end of the 2023/2024 season.
2. In accordance with article 2 of the employment contract, the Respondent / Counter-Claimant
undertook to pay to the Claimant / Counter-Respondent inter alia the amount of USD
192,500, payable as follows:
➢ USD 12,500 for 2019/2020 season, payable as follows:
-
USD 2,000 payable on 1 January 2020;
USD 2,000 payable on 1 February 2020;
USD 2,000 payable on 1 March 2020;
USD 2,000 payable on 1 April 2020;
USD 2,000 payable on 1 May 2020;
USD 2,000 payable on 1 June 2020;
USD 500 payable on 1 July 2020.
➢ USD 30,000 for 2020/2021 season payable as follows:
-
USD 3,000 payable on 01 August 2020;
USD 3,000 payable on 1 September 2020;
USD 3,000 payable on 1 October 2020;
USD 3,000 payable on 1 November 2020;
USD 3,000 payable on 1 December 2020;
USD 3,000 payable on 1 January 2021;
USD 3,000 payable on 1 February 2021;
USD 3,000 payable on 1 March 2021;
USD 3,000 payable on 1 April 2021;
USD 3,000 payable on 1 May 2021.
➢ USD 40,000 for 2021/2022 season;
➢ USD 50,000 for 2022/2023 season;
➢ USD 60,000 for 2023/2024 season.
3. Article 3.1.5 of the contract states that “The club has no right to inflict fines on the player
with amount of more than 50% of the contract value”.
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4. Article 4.1 states that “This contract must be notarized. The prescribed notarization's fees
shall be paid equally by both club and the player”.
5. Article 4.5 of the contract states that “The player shall pay all taxes owed by him for this
contract and any other qualitative rewards according to the law. It shall be deducted by the
club from the player's entitlements and to be given to Tax Authority under his liability”.
6. By correspondence dated 29 April 2021, the Claimant / Counter-Respondent sent a letter to
the Respondent / Counter-Claimant requesting payment of six payments (the salaries for the
period between November 2021 and April 2021) and stating that he has never agreed to any
amendments to the contractually agreed payment schedule.
7. On 8 May 2021, the Respondent / Counter-Claimant sent a letter to the Claimant / CounterRespondent, informing him that he failed to attend a training session on 19 November 2020
and that he failed to undergo a medical examination by the club. In this regard, the
Respondent / Counter-Claimant opened a disciplinary procedure against the Claimant /
Counter-Respondent and invited him to submit his position by 9 May 2021.
8. On 8 May 2021, the Claimant / Counter-Respondent sent a letter contesting the deduction to
his salary as a result of a fine imposed on him by the Respondent / Counter-Respondent. In
the same letter, the Claimant / Counter-Respondent reminded the Respondent / CounterClaimant to pay his outstanding salaries in the amount of USD 21,000.
9. On 16 May 2021, the Claimant / Counter-Respondent put the Respondent / Counter-Claimant
in default of payment for the amount of USD 21,000, corresponding to 7 instalments in the
amount of USD 3,000 each in accordance with the contract, granting the Respondent 15 days
to comply with its contractual obligations.
10. On 20 May 2021, the Respondent/ Counter-Claimant replied to the default notice stating that
“(…) regarding the financial part, we wish to advise that while you have rightly mentioned the
gross contract amount along with current season total gross value ,you have ignored the fact
that season has been shifted due to covid to start in December instead of August and the
season is yet to finish ( September 2021 target date). Accordingly, the first payment was made
in December. You also missed thinking about contract-based deductions due to income tax
(USD 7,500) according to the law, contract-binding clauses, registration tax (USD 450) paid to
the Egyptian Football Association (EFA) as per the law. Binding conditions of the contract and
development tax (USD 900) to be paid to the EFA in accordance with the contract in addition
to the penalties already applied and the player was notified (USD 4,500) due to repeated
unauthorized absence.
When applying the above deductions and when considering the progress of the current season
you can easily conclude that the club has already met their current obligations as per the
progress of the season. Moreover, a cheque for USD 2,000 is also available for collection at
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the club whenever is convenient and the club reconfirm all its obligations under the player
employment contract”
11. On 23 May 2021, the Claimant / Counter-Respondent sent an email to the Respondent /
Counter-Claimant, reminding it to pay his outstanding salaries as per his default notice dated
16 May 2021.
12. On 29 May 2021, the Claimant / Counter-Respondent further sent default notices reminding
the Respondent / Counter-Claimant to comply with its contractual obligations, granting it 15
days to comply with its obligations, however to no avail.
13. On 1 June 2021, the Claimant / Counter-Respondent unilaterally terminated the contract with
the Respondent / Counter-Claimant.
II. Proceedings before FIFA
14. On 8 June 2021, the Claimant / Counter-Respondent 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 / Counter-Respondent
15. According to the Claimant / Counter-Respondent, the Respondent / Counter-Claimant failed
to respect its contractual obligations and that as of 16 May 2021, the Respondent / CounterClaimant had only paid the total amount of USD 9,000.
16. Consequently, the Claimant / Counter-Respondent adds that the Respondent / CounterClaimant omitted to pay him an amount of USD 21,000 corresponding to the rest of
instalments.
17. The Claimant / Counter-Respondent adds that despite several default notices to the
Respondent / Counter-Claimant, it did not fully respect its contractual obligations as it later
paid a further amount of USD 2,000 only.
18. In view of the above, the Claimant / Counter-Respondent submits that it is undisputed that on
1 June 2021, he had just cause to terminate the contract in accordance with article 14bis RSTP,
as (i) he had outstanding amounts corresponding to more than 2 monthly salaries, (ii) had put
the Respondent / Counter-Claimant in default and granted it 15 days fulfil with payment, and
(iii) the Respondent / Counter-Claimant failed to settle the outstanding amounts within the
grace period.
19. In conclusion, the Claimant / Counter-Respondent considers that the Respondent / CounterClaimant must be obliged to pay the outstanding remuneration in the total amount of USD
19,000.
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20. Further, the Claimant / Counter-Respondent deems that he is in principle entitled to
compensation for breach of contract as in the total amount of USD 150,000.
b. Position of the Respondent / Counter-Claimant
21. The Respondent / Counter-Claimant in its reply rejected the claim of the Claimant / CounterRespondent and submitted that he terminated the contract without just cause and as a result
filed a counterclaim against the Claimant / Counter-Respondent.
22. According to the Respondent / Counter-Claimant, the parties had a good working relationship
until the month of November 2020, when the Claimant / Counter-Respondent started to miss
training sessions without any permission or justified reason. In this respect, the Respondent /
Counter-Claimant states that it sent a letter to EFA, in which it communicated the Claimant /
Counter-Respondent’s violation of the contractual obligations and subsequently, it formally
communicated to EFA the relevant disciplinary sanctions applied to the Claimant / CounterRespondent for the amount of USD 2,500.
23. According to the Respondent/ Counter-Claimant, since the signature of the contract, it has
always fulfilled its obligations to the Claimant / Counter-Respondent. It adds that at the same
time, it paid all amounts provided in the contract as taxes to the Egyptian Tax Authority as well
as registration fees to the EFA, i.e. 1.5% as documentation fees and 3% as development duty
on each annual salary.
24. Unfortunately, notwithstanding its efforts, the Respondent / Counter-Claimant submits that
the Claimant / Counter-Respondent continued to miss training sessions, namely on 26, 27 and
28 April 2021. In that regard, the Respondent / Counter-Claimant argued that it formally
communicated to the Claimant / Counter-Respondent that “if you fail to attend training
sessions, as you were absent on the first day of training, the penalties list will be applied to
you”. Therefore, the Respondent / Counter-Claimant submits that in accordance with article 3
of the contract, it once again fined the Claimant / Counter-Respondent for the amount of USD
1,500, i.e. USD 500 for each daily absence.
25. On 8 May 2021, the Claimant / Counter-Respondent objected to the deduction applied by the
Respondent / Counter-Claimant, but did not explain the reason for his absence to the training
session communicated by the Club, at the same time, he did not object the deductions relevant
to the absences.
26. Despite the above, the Respondent submits that the Claimant / Counter-Respondent once
again missed training on 15 May 2021 and a further fine of USD 500 was imposed on him
and that on 22 May 2021, the Claimant / Counter-Respondent was once again fined USD
2,500 “for speaking to the coach in an inappropriate manner”.
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27. Furthermore, the Respondent / Counter-Claimant underlines that the contract expressly
provided for the tax deductions applied by the Club in full respect of the regulations of EFA
and the Egyptian Government. More precisely, the Respondent / Counter-Claimant adds that
pursuant to article 4.1 of the Contract “This contract shall be registered and the club shall pay
the specific fees for registration equally between the club and the player” and that in addition,
in accordance with article 4.5 of the contract: “The Player shall bear the amount of taxes due
from him for this contract, any other kind of rewards according to the law; the Club shall
deduct from player’s dues and import them for taxes under his responsibility”.
28. In this respect, the Respondent / Counter-Claimant points out that the EFA – in a letter sent
to the Egyptian club El Zamalek and attached in other proceedings pending before the CAS –
clarified the content of the EFA Standard Employment Contract, in particular with regard the
registration fees due to the Federation and the deduction of taxes to the professional playersThis official communication expressly provides that:
“1.All the professional Clubs are required to use the EFA Standard Employment Contract Form
in Arabic or English when they sign an employment contract with a professional Player, even
if a foreigners;
2. Any amount indicated in the EFA Standard Employment Contract Form are to be
considered gross, unless a clear different agreement is reached by the Parties (...)”.
29. In that regard, the Respondent / Counter-Claimant underlines that the content of the above
letter applies also in this matter, because the clubs Misr Lelmakkasa and El Zamalek compete
in the same championship, i.e. the Egyptian Premier League.
30. Moreover, the Respondent / Counter-Respondent points out that the tax rate at 22.5%was
amended by the Law n. 26/2020 and increased to 25% for the high value contract. Therefore,
any amount indicated in the contract must be considered gross and subjected to the taxes
foreseen by the Egyptian Taxes Law at rate of 25% (note: documents on file) plus the rate of
10% pursuant to article 48, Clause (H), point 7 of the Law n. 63/2010 plus the rate of 3%
pursuant to article 21 of the Law n. 83/2020.
31. According to the Respondent / Counter-Claimant, it is worth noting that, first of all, that the
Claimant/ Counter-Respondent, in relation to the sporting season 2019/2020 (i.e. from
January to July 2020), recognized the payments of all salaries and other benefits provided in
the contract: he never claimed any amount relevant to this period. In the same way, with
regard to the sporting season 2020/2021, the Respondent / Counter-Claimant has shown that
it paid all amounts due. More precisely, the Claimant / Counter-Respondent recognized before the notification of his unilateral and unlawful termination of the contract - the payment
of USD 11,000, namely:
(i) EGP 117,525, i.e. 7,500 USD, in cash on 15 January 2021;
(ii) EGP 26,116, i.e. 1,500 USD by cheque dated 11 April 2021;
(iii) USD 2,000 by means of bank transfer.
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32. Unfortunately, according to the Respondent / Counter-Claimant, the Claimant / CounterRespondent, in bad faith, hid another payment in the amount of EGP 92,290, approximately
USD 6,000, received on 17 January 2021 by cheque, relevant in part the balance payment of
the sporting season 2019/2020, and the remaining part of USD 1,205 to compute in the
sporting season 2020/2021.
33. The Respondent / Counter-Claimant further clarifies that the amount indicated by the Claimant
/ Counter-Respondent is not correct: the figures mentioned in the contract are gross and not
net. In fact, with regard the sporting season 2020/2021 the gross amount mentioned in the
contract is USD 30,000, with the follows tax and registration fees in accordance with the
contractual provisions:
-
USD 7,500 as Taxes 25% deduction pursuant to article 8 of the Income Tax Law No.
91/2005 as amended by the Law n. 26/2020;
USD 3,000 as taxes pursuant to article 48, Clause (H), point 7 of the Law n.63/2010;
USD 900 as Development duty paid in favour of EFA pursuant to article 21 of the Law
n. 83/2020;
USD 450 as Registration Fees Player’s quota deduction 1.5%.
34. In light of the above, the Respondent / Counter-Claimant submits that the net amount due to
the Claimant / Counter-Respondent for the sporting season 2020-2021 is USD 18,150, i.e.
1,815 USD for each instalment provided in the contract.
35. According to the Respondent / Counter-Claimant, on the above net amount must be applied
the deduction of the amount of USD 6,500 as disciplinary sanctions (fines) applied by the
Board of the Club.
36. The Respondent / Counter-Claimant submits that the Claimant / Counter-Respondent,
including sanctions, received the following amounts:
-
-
-
on 15 January 2021 the amount of USD 10,000 (i.e. USD 7,500 in cash plus the deduction
of the fine of USD 2,500 for the absences in the months of November and December 2020)
as instalments of August, September, October, November, December 2020 and part of
January 2021 (USD 1,815 x 6 months = USD 10,890);
on 17 January 2021 the amount of USD 1,205 (i.e. a part of the extra payment by cheque)
as residual part of the salary of January 2021 (USD 890) and advance of February 2021
(USD 315);
on 11 April 2021, the amount of USD 1,500 as residual amount of the instalment of
February 2021;
on 1 June 2021, the amount of USD 2,000 as balance of the instalments of March, April
and May 2021 (USD 1,815 x 3 months 5,445, i.e. USD 2,000, by bank transfer plus the
fines of the total amount of USD 4,000 relevant to the absences of April and May 2021
and the “speaking in inappropriate manner with the coach”).
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37. Furthermore, the Respondent / Counter-Claimant emphasizes that all fines applied to the
Claimant/ Counter-Respondent are fair and in full respect of article 3.1.5 of the contract: “The
club may not impose fines against the player by more than 50% of the total contract amount”.
In fact, the total amount of USD 6,500 as fines is less than 50% of the total contract amount;
i.e. USD 192,500. Additionally, according to the Respondent/ Counter-Claimant, the Claimant
/ Counter-Respondent has never appealed such fines against the Club in front of any of the
EFA or FIFA judicial bodies.
38. In light of the above, the Respondent / Counter-Claimant submits that it has shown its
fulfilment of the contractual obligations and, therefore, it is clear that the Claimant / CounterRespondent terminated the contract without just cause since at the date of termination, there
were no overdues. Therefore, according to the Respondent / Counter-Claimant, the Claimant
/ Counter-Respondent is not entitled to receive any amounts as outstanding salaries nor as
compensation.
39. Consequently, the Respondent / Counter-Claimant requests the FIFA DRC to reject in full the
Claimant / Counter-Respondent’s requests for payment.
40. The Respondent / Counter-Claimant further submits that should the DRC deem that the
Claimant / Counter- Respondent is entitled to compensation for breach of contract, then it
should be net after the deduction and payment of the taxes in Egypt of 25% + 10% + 3% as
well as of the registration fees of 1.5%, i.e. a net amount of USD 90,750 and not USD 150,000
as requested by the Claimant/ Counter-Respondent.
41. In conclusion, the Respondent / Counter-Claimant submits that the Claimant / CounterRespondent’s allegations are completely unfounded because, at the date of the termination
of the contract, it had paid all the amounts due in accordance with the contract and that
therefore the Claimant / Counter-Respondent terminated the contract without just cause.
42. As a consequence, the requests for relief of the Respondent/ Counter-Claimant, were the
following:
-
-
USD 150,000 as compensation for breach of contract by the Claimant during the protected
period;
USD 55,000 (Claimant’s market value) as estimated loss of transfer fee of the player;
USD 6,500 as specificity of sport;
a 6 or 4 months’ ban from matches.
on a subsidiary basis, in case the DRC deems appropriate to award a compensation in
favour of the Claimant -such a compensation must be indicated as gross with the Club’s
right to deduct the taxes in Egypt of 25% + 10%+ 3% as well as of the registration fees
of 1.50%, i.e. a net amount of USD 90,750;
to apply any other measure it considers necessary in the decision of the case at stake.
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c. Response to the counterclaim by the Claimant/Counter-Respondent
43. The Claimant / Counter-Respondent - in reply to the counterclaim - maintains all his arguments
contained in the statement of claim.
44. However, the Claimant / Counter-Respondent adds that the contract does not indicate any
reference to the alleged gross nature of the monthly wages. He also adds that the Respondent
/ Counter-Claimant has never informed him that it had to deduct tax from his salary.
45. The Claimant / Counter-Respondent adds that the FIFA DRC is unanimous that in the absence
of precision in the contract, the club cannot subsequently claim any taxes and registration fees.
46. In regards to the payment of the amount of EGP 92,290, the Claimant / Counter-Respondent
submits that this payment was made for arrears for the 2019/2020 season and has no corollary
with the season 2020/2021 and should not be taken into account when calculating the
outstanding salaries for 2020/2021 season.
47. In regards to the disciplinary sanctions, the Claimant / Counter-Respondent submits that it is
important to remember that this is a termination on the basis of article 14bis and therefore
the question of disciplinary sanctions only comes into consideration for the calculation of
arrears and has no effect on the unilateral termination, since the Respondent/ CounterRespondent never terminated the contract on the basis of these alleged absences.
48. In this context, the Claimant / Counter-Respondent submits that he does not recognize the
sanctions imposed on him by the Respondent / Counter-Claimant and refutes all the repeated
accusations of absence.
49. According to the Claimant / Counter-Respondent, the bad faith of the Respondent /
Counter-Claimant is evident for several reasons:
-
-
the Respondent/Counter-Claimant has never informed the player about any disciplinary
procedure and hence, the latter has never had the chance to defend himself or to present
his arguments and refute the accusations of absence;
the Respondent/Counter-Claimant presented a document that it alleges having notified to
the EFA without any proof of sending and moreover, the Claimant / Counter-Respondent
adds that he was not recipient of this document as normally, the Respondent / CounterClaimant should have sent the notification of the sanctions to him so that he can challenge
them.
50. In conclusion, the Claimant / Counter-Respondent reiterates his position as submitted in his
claim and requests that the counterclaim of the Respondent / Counter-Claimant should be
dismissed.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
51. 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 10 June 2021 and submitted for decision on
3 November 2021. Taking into account the wording of art. 34 of the October 2021 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.
52. 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 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Moroccan player and an Egyptian
club.
53. 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 (August 2021 edition) and
considering that the present claim was lodged on 10 June 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
54. 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
55. 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,
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arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
56. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that according to the Claimant / Counter-Respondent, he terminated
the contract with just cause and is therefore entitled to outstanding remuneration and
compensation for breach of contract.
57. The Chamber also noted that on the other hand, the Respondent / Counter-Claimant rejected
the claim of the Claimant / Counter-Respondent and filed a counterclaim against, as it was of
the opinion that the Claimant / Counter-Respondent unilaterally terminated the contract
without just case.
58. In this context, the Chamber acknowledged that its task was to determine whether the
employment contract was terminated by the Claimant / Counter-Respondent with just cause
or without just cause on 1 June 2021.
59. To start with, the Chamber noted that it is disputed between the parties whether the amounts
due under the contract were net or gross. In this regard, the Chamber noted that article 4.5
of the contract provided for taxes to be deducted from the Claimant / Counter-Respondent’s
salary. With this in mind and taking into account the fact that the Claimant / CounterRespondent did not previously contest the reductions made to his salary payments in the
2019/2020 season, the Chamber concluded that the amounts under the contract were to be
considered gross amounts, subject to tax deductions, and that the Respondent / CounterClaimant had validly deducted a total amount of USD 11,850 as taxes, in accordance with the
contract.
60. With the above in mind, the Chamber concluded that the Claimant / Counter-Respondent’s
monthly net salary was USD 1,815 per month for the 2020/2021 season (a total of USD 18,150
for the entire season 2020/2021).
61. Having ascertained the above, the Chamber turned its attention to the Respondent / CounterClaimant’s submission that it had paid a total amount of USD 15,705 for the 2020/2021
season to the Claimant / Counter-Respondent, as follows:
-
USD 7,500 in cash on 15 January 2021;
USD 1,500 by cheque dated 11 April 2021;
USD 2,000 by means of bank transfer;
USD 1,205 on 17 January 2021
USD 1,500 on February 2021;
USD 2,000 on 1 June 2021.
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62. In this regard, the Chamber noted that the Claimant / Counter-Respondent contested the
payment of the amount of USD 1,205 allegedly paid on 17 January 2021 and states that it
was made for the arrears of the 2019/2020 season. In this regard, the Chamber noted that
the receipt provided by the Respondent / Counter-Claimant makes no reference to what
payment period said payment was intended for. As a result of this, the Chamber concluded
that the burden of proof for this specific point would lie with the Respondent / CounterClaimant, which consequently failed to meet its burden of proof in this regard.
63. In continuation, the Chamber noted that at the date of the default notice dated 16 May 2021,
the Respondent / Counter-Claimant had paid a total amount of USD 12,500.
64. Based on the foregoing, the Chamber concluded that at the date of the termination of the
contract by the Claimant / Counter-Claimant, i.e. 1 June 2021, an amount of USD 5,650 net
remained outstanding, which is equivalent to more than three monthly salaries.
65. Consequently, the Chamber deemed that on 1 June 2021, Claimant / Counter-Respondent
terminated his contract with just cause and is entitled to outstanding remuneration and
compensation for breach of contract.
66. However, noting that the Respondent / Counter-Respondent at a later point paid an amount
of USD 2,000 to the Claimant / Counter-Respondent after the default notice on 1 June 2021,
the Chamber said late payment does not set aside the consequences of article 14bis of the
Regulations. As a result, the Chamber concluded that said amount should be deducted from
the outstanding remuneration due to the Claimant / Counter-Respondent (USD 5,650 -/- USD
2,000).
67. In continuation, the Chamber turned its attention to the Respondent / Counter-Claimant’s
submission that it had imposed several fines on the Claimant / Counter-Respondent for alleged
misconduct and as a result, deducted said fines from the Claimant / Counter-Respondent’s
salaries.
68. In this regard, the Chamber deemed it vital to outline that fines cannot be set off against salary
payments especially as there was no provision for this in the contract. Nonetheless, the
Chamber analysed the various fines imposed on the Claimant / Counter-Respondent as
follows:
-
For the alleged repeated unauthorized absences in November 2020 and the imposed
fine of USD 2,500, the Chamber noted that these disciplinary proceedings seemed to
be a reaction to the default notice sent by the Claimant / Counter-Respondent in the
same month of May and that only the FA and not the Claimant / Counter-Respondent
had been informed about said fine. Additionally, the Chamber deemed that the fine
of USD 2,500 amounted to one gross monthly salary and therefore is to be considered
disproportionate. As a result, the Chamber decided that said fine cannot be upheld;
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-
In regards to the fine of USD 1,500 imposed on the Claimant for alleged absences on
26, 27 and 28 April 2021 at USD 500 per day, the Chamber once again deemed that
this was a clear reaction to the Claimant / Counter-Respondent’s default notice, even
though the Claimant / Counter-Respondent was this time granted the right to be
heard. Nonetheless, the Chamber deemed that a fine of USD 500 per day is equal to
1/3 of a monthly net salary and should be reduced to the amount of USD 60 per day
(USD 1,800 net salary per month / 30). As a result, the Chamber decided to reduce the
fine due by the Claimant / Counter-Respondent to the Respondent / Counter-Claimant
to the total amount of USD 180 (USD 60x3);
-
Likewise, the Chamber deemed that the fine of USD 500 per day for the alleged
absence on 15 May 2021 is to be considered disproportionate and also noted that
there was no indication on file that the Claimant / Counter-Respondent’s right to be
heard was respected;
-
In regards to the imposed fine of USD 2,500 for ‘speaking to the coach in an
inappropriate way’, the Chamber deemed that said fine was disproportionate and that
once again there was no indication on file that the Claimant / Counter-Respondent’s
right to be heard was respected.
ii. Consequences
69. Furthermore, the members of the Chamber turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent / CounterClaimant.
70. The Chamber observed that the financial obligations deemed as outstanding in the present
case correspond to the unpaid amount of USD 3,650 (USD 5,650 -/- USD 2,000) as salaries
due under the contract.
71. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent / Counter-Claimant is liable to pay to the Claimant
/ Counter-Respondent the amounts claimed as outstanding under the contract, in total USD
3,650, consisting of the salaries for March (partial), April and May 2021 salaries.
72. In addition, taking into consideration the Claimant / Counter-Respondent’s request as well as
the constant practice of the Chamber in this regard, the latter decided to award the Claimant
/ Counter-Respondent’s interest at the rate of 5% p.a. on the outstanding amounts as from
the respective due dates until the date of effective payment.
73. What is more, as to the fines imposed, the Chamber concluded that the Claimant / CounterRespondent is responsible to pay an amount of USD 180 as fines to the Respondent / CounterClaimant.
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74. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant / Counter-Respondent by the Respondent / CounterClaimant 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.
75. 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.
76. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent / Counter-Claimant to the Claimant / CounterRespondent 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.
77. Bearing in mind the foregoing as well as the claim of the Claimant / Counter-Respondent, the
Chamber proceeded with the calculation of the monies payable to the Claimant / CounterRespondent under the terms of the contract from the date of its unilateral termination until
its end date. Pursuant to the contract, the Chamber deemed that the residual value of the
contract amounts to USD 150,000 gross, which – taking into account the deduction and
payment of the taxes in Egypt of 25%, plus 10% plus another 3%, as well as of the registration
fees of 1.5% - corresponds to USD 90,750 net.
78. Consequently, the Chamber concluded that the amount of USD 90,750 shall serve as the basis
for the final determination of the amount of compensation for breach of contract.
79. In continuation, the Chamber verified as to whether the Claimant / Counter-Respondent 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.
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80. In this regard, the Chamber noted that the Claimant / Counter-Respondent submitted that he
did not sign a new contract since the contract termination. However, the Chamber noted that
based on the information contained in the TMS, the Claimant / Counter-Respondent found
new employment and signed a contract with the Moroccan club Olympic Dcheira, valid from
23 August 2021 until 30 June 2023 for a total amount of MAD 204,887.09 (approximately
USD 22,200). The Claimant / Counter-Respondent was therefore able to mitigate his losses by
an amount of USD 22,200.
81. However, in accordance with the jurisprudence and seeing as the termination of the contract
was due to overdue payables, the Chamber decided to award the Claimant additional
compensation equivalent to 3 months’ salary for the amount of USD 5,445 (USD 1,815 x 3).
82. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Respondent/counter-Claimant must pay
the amount of USD 73,995 (USD 90,750 -/- USD 22,200 + USD 5,445) to the Claimant /
Counter-Respondent, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
83. Lastly, taking into consideration the Claimant / Counter-Respondent’s request as well as the
constant practice of the Chamber in this regard, the latter decided to award the Claimant /
Counter-Respondent interest on said compensation at the rate of 5% p.a. as of 8 November
2021, the date of the notification of the decision, until the date of effective payment.
84. The DRC concluded its deliberations by deciding that the claim of the Claimant / CounterRespondent and the counterclaim of the Respondent / Counter-Claimant are partially
accepted.
d. Costs
85. 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.
86. 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.
87. 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 / Counter-Respondent, Ahmed Marchuh, is partially accepted.
2.
The counterclaim of the Respondent / Counter-Claimant is partially accepted.
3.
The Respondent / Counter-Claimant, Misr Makassa, has to pay to the Claimant / CounterRespondent, the following amounts:
➢ USD 3,650 as outstanding remuneration, plus 5% interest p.a. as from the due dates until
the date of effective payment as follows:
-
on the amount of USD 20 as of 2 March 2021;
on the amount of USD 1,815 as of 2 April 2021;
0n the amount of USD 1,815 as of 2 May 2021.
➢ USD 73,995 as compensation for breach contract, plus 5% interest p.a. as of 8 November
2021 until the effective date of payment.
▪
4.
The Claimant / Counter-Respondent has to pay the Respondent / Counter-Claimant, USD 180
as fines imposed.
5.
Any further claims of the Claimant / Counter-Respondent and the Respondent / CounterClaimant are rejected.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
7.
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/counter-Claimant 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.
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.
8. 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.
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9. 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).
CONTACT INFORMATION
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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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