Labour Disputes
Texto da decisão
REF FPSD-7129
Decision of the
Dispute Resolution Chamber
passed on 11 January 2023
regarding an employment-related dispute concerning the player Soloman
Mensah
BY:
Gonzalo de Medinilla (Spain)
CLAIMANT:
Soloman Mensah, Ghana
Represented by Islam Hisham & Partners
RESPONDENT:
Petrojet SC, Egypt
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I. Facts of the case
1.
On 24 January 2022, the Ghanian player Solomon Mensah and the Egyptian club Petrojet
Sporting Club (hereinafter the Claimant or the player) signed an employment agreement
(hereinafter the Employment Agreement), valid until the end of the season of 2021/2022.
2.
In Clause 2 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the parties) agreed that the total amount of the Employment Agreement is
799,999 Egyptian Pounds (EGP), which shall be paid in the following instalments:
−
−
−
−
−
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3.
EGP 666,666 as a first instalment, to be paid on 31 January 2022.
EGP 26,666 as a second instalment, to be paid on 1 February 2022.
EGP 26,666 as a third instalment, to be paid on 1 March 2022.
EGP 26,666 as a fourth instalment, to be paid on 1 April 2022.
EGP 26,666 as a fifth instalment, to be paid on 1 May 2022.
EGP 26,666 as a sixth instalment, to be paid on 1 June 2022.
In Clause 4 par. 6 of the Employment Agreement, the parties agreed upon the following:
“Player shall bear the taxes due from him on this contract, and any other in-kind
remuneration, in accordance with the law, and the club shall deduct such amounts from
the dues of the player and pay them to the Tax Authority under the liability thereof.”
(emphasis added)
4.
It remained undisputed between the Parties that the amount of EGP 600,000 was duly
paid by the Respondent.
5.
On 7 June 2022, the Claimant sent a letter to the Respondent, requesting the payment of
“substantial outstanding payments“, granting the club a deadline of 5 days.
6.
Allegedly, the Claimant found a new club and, in order to finalize the deal, release as well
as the TPO documents were requested.
7.
On 21 June 2022, the Claimant attended the club to amicably settle the dispute.
8.
On the same day, the Claimant signed the following document named Quittance
(hereinafter the Quittance), acknowledging that the Respondent has no further financial
obligations towards him:
“I, the player / Solomon Mensah , Ghanaian nationality (football player in the first team of
Petrojet Club), whose personal identity under passport No. G3327231, declares that I sign
this declaration after receiving all my financial and In-kind rights resulting from the contract
concluded between me and Petrojet Club on 24/01/2022, for a period of 6 months, starting
from the January 2022 transfers until the end of the 2021/2022 season.
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My signature on this acknowledgment is considered as a release from me to the club from
any rights enshrined in the contract -concluded between me and the club mentioned above,
and my acknowledgment that I have no right to recourse to the club for any financial
obligations or otherwise regarding this contract, whether immediately or in the future, and
it works before all authorities and bodies Local and international, especially the Players'
Affairs Committee and the Grievances Committee of the Egyptian Football Association, or
before any sports or judicial bodies with jurisdiction.
I also acknowledge that I have signed this declaration of my own free will, free of any
impurities or pressures, and I have no right to revert to this declaration.”
9.
Allegedly on 15 July 2022, the Claimant sent a letter to the Embassy of the Republic of
Ghana, alleging, inter alia, “I didn’t know how to deal with this situation, as I really afraid of
my future and also afraid to lose the new employment offer, as well as the club forced,
pressured, and put me under duress to sign the paper of quittance, and all of this story is
evident by a recorder on my phone.”
10. On 21 July 2022, the Claimant sent a default notice to the Respondent, requesting the
amount of EGY 200,000. The Respondent was granted 10 days to comply with its
obligations, however, to no avail.
II. Proceedings before FIFA
11. On 21 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
12. The requests for relief of the Claimant were the following:
“1) To accept this claim against the Respondent.
2) To consider the Quittance is invalid.
3) To condemn the Respondent to pay the Claimant the total amount of EGP (200,000)
as outstanding salaries, as follows:
a) An Amount of EGP (66,000) as a residual non paid from first installment, the
interest shall be calculated as from 24 January 2022 the Contract.
b) An Amount of EGP (26,666) as a second installment for February 2022, the
interest shall be calculated as from 1 February 2022.
c) An Amount of EGP (26,666) as a third installment for March 2022, the interest
shall be calculated as from 1 March 2022.
d) An Amount of EGP (26,666) as a fourth installment for April 2022, the interest
shall be calculated as from 1 April 2022.
e) An Amount of EGP (26,666) as a fifth installment for May 2022, the interest shall
be calculated as from 1 May 2022.
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f) An Amount of EGP (26,666) as a sixth installment for June 2022, the interest shall
be calculated as from 1 June 2022.
4) To condemn the Respondent to pay interests at a rate of five percent (5%) per annum
over entire amounts requested from the due date of each payment until the date of the
effective payment.
5) To impose the Respondent whatever sanctions this honorable Chamber deems fit in
accordance with article 12 bis of the FIFA RSTP.
6) To fix a sum of OMR (1,000) “one thousand” NET, to be paid by the Respondent to the
Claimant, to help the payment of its legal fees and costs.”
13. In his claim, the Claimant alleged that he was “forced to sign on the Quittance document,
against his wishes, for the reason of getting the paper of release and TPO in order to sign
another contract with new club for the season 2022/2023.”
14. In this regard, the Claimant argued that he signed the Quittance under duress and that,
in any event, “waiving of salary for work already performed cannot be validly made” (with
reference to CAS 2020/A/6727, CAS 2016/A/4582 and FPSD-4563.
15. The Claimant based the claim on the legal principle pacta sunt servanda.
b. Position of the Respondent
16. The Respondent rejected the claim of the Claimant, arguing that it “has paid all the
financial dues to the complaining player, by cheques on their due dates”.
17. In this respect, it pointed to Clause 4 par. 6 of the Employment Agreement, arguing that
it made the following payments to the Claimant:
“1. An amount of 500,000 Egyptian Pounds (Five Hundred Thousand pounds) by cheque no.
2885564, due on 01/02/2022, drew on the Arab Bank, Heliopolis branch.
2. An amount of 20,000 Egyptian Pounds (Twenty Thousand pounds) by cheque no. 2885616,
due on 24/02/2022, drew on the Arab Bank, Heliopolis branch.
3. An amount of 19,000 Egyptian Pounds (Nineteen Thousand pounds) by cheque no.
2885704, due on 05/04/2022, drew on the Arab Bank, Heliopolis branch.
4. An amount of 20,000 Egyptian Pounds (Twenty Thousand pounds) by cheque no. 2885728,
due on 28/04/2022, drew on the Arab Bank, Heliopolis branch.
5. An amount of 20,000 Egyptian Pounds (Twenty Thousand pounds) by cheque no. 2885760,
due on 01/05/2022, .drew on the Arab Bank, Heliopolis branch.
6. An amount of 20,000 Egyptian Pounds (Twenty Thousand pounds) by cheque no. 2885800,
due on 21/06/2022, drew on the Arab Bank, Heliopolis branch.”
18. Regarding the Quittance, the Respondent added that “it is a routine procedure done upon
the expiry of the-contract with the player and is not directly related to his financial dues as per
the contract, which he has received on the due-dates.”
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19. In view of the above, the Respondent was of the opinion that “it is useless to claim that the
said player has signed the clearance declaration under coercion and compulsion, as the club's
evidence of the settlement of the indebtedness to the player is not the challenged declaration,
however, it is the said cheques, which the copies thereof are submitted, and which the club has
delivered to the player on their due dates.”
c. Comments of the Claimant
20. The Claimant was requested by the FIFA general secretariat to comment on the reply of
the club.
21. In this respect, the Claimant argued that based on the evidence presented by the
Respondent, “the Honourable Chamber will find that the Club Admitted that the Player just
received an amount of EGP (599,000), which means that there is an amount of EGP (200,966)
still outstanding, and has not been paid to the Player” and, what is more, that the salaries
have been paid with delay.
22. In this respect, the Claimant slightly adapted its request for relief, claiming the amounts
as follows:
“To condemn the Club to pay the Player the total amount of EGP (200,999) as outstanding
salaries, as follows:
a) EGP (166,666) as a residual non-paid from first installment, the interest shall be
calculated as from 24 January 2022.
b) EGP (6,666) as a residual non-paid from second installment for February 2022, the
interest shall be calculated as from 1 February 2022.
c) EGP (7,666) as a residual non-paid from third installment March 2022, the interest shall
be calculated as from 1 March 2022.
d) EGP (6,666) as a residual non-paid from fourth installment April 2022, the interest shall
be calculated as from 1 April 2022.
e) EGP (6,666) as a residual non-paid from fifth installment for May 2022, the interest shall
be calculated as from 1 May 2022.
f) EGP (66,666) as a residual non-paid from sixth installment for June 2022, the interest shall
be calculated as from 1 June 2022.”
23. The Claimant further noted that the Respondent “did not challenge or provide any evidence
denying our allegations that the Club has put the Player under the pressure and forced him to
sign the document called “Quittance”.
24. As to the Respondent’s argument regarding taxes, the Claimant was of the opinion that
the club failed to meet its burden of proof regarding the applicable tax rate.
25. In view of the above, the Claimant reiterated its claim.
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d. Comments of the Respondent
26. The Respondent was requested by the FIFA general secretariat to comment on the final
submission of the Claimant.
27. In this respect, the Respondent reiterated that in accordance with the Employment
Agreement, the Claimant shall bear the taxes and that those will be deducted directly by
the Respondent in accordance with the Egyptian law.
28. The Respondent argued that the respective national provision “stipulates that the tax due
on annual income exceeding 400 thousand pounds shall be 25%”.
29. In support of its argumentation, the Respondent provided documentation to prove that
it made the respective payment of the taxes to the Egyptian Tax Authority.
30. Finally, the Respondent argued that the argumentation of the Claimant regarding the
“waiver” is ill-founded as “the action taken by the Club is only a routine procedure on the
occasion of the end of the contract with the player and is not directly related to his financial
dues according to the contract, which he obtained on the due dates.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) 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
21 August 2022 and submitted for decision on 11 January 2023. Taking into account the
wording of art. 34 of the October 2022 edition of the Procedural Rules Governing the
Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2.
Subsequently, 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 lit. b) of the
Regulations on the Status and Transfer of Players October 2022 edition),he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Ghanian player and an Egyptian club.
3.
Subsequently, the Single Judge 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 (October 2022 edition) and
considering that the present claim was lodged on 21 August 2022, the July 2022 edition
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of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
4.
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 he 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
5.
His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he 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 he will refer only to the
facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim for outstanding remuneration.
7.
Before entering into the merits of the dispute, the Single Judge wished to clarify that the
argumentation of the Claimant regarding waived salaries and duress shall be rejected as
it does not apply at the matter at hand.
8.
The Single Judge continued that, in casu, the Claimant acknowledged to have received the
payments as per the cheques provided by the Respondent. However, the Single Judge
noted that the Claimant was of the opinion that an amount of EGP 201,000 still remained
outstanding.
9.
In this respect, the Single Judge equally took note that the Respondent argued that the
payments as per the cheques fulfil the contractual obligations in full and that the claimed
difference corresponds to the respective taxes as per Clause 4 par. 6 of the Employment
Agreement, which were deducted by the club.
10. In this context, the Single Judge acknowledged that his task was to merely analyse if the
Respondent was indeed entitled to make the tax reduction as claimed.
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11. Taking into account the above, the Single Judge recalled Clause 4 par. 6 of the Employment
Agreement:
“Player shall bear the taxes due from him on this contract, and any other in-kind
remuneration, in accordance with the law, and the club shall deduct such amounts from
the dues of the player and pay them to the Tax Authority under the liability thereof.”
12. The Single Judge was of the opinion that the wording of respective clause is clear in
establishing that the Respondent deducts the applicable tax.
13. What is more, after a due analysis of the evidence on file, the Single Judge concluded that
the Respondent met his burden of proof as to the applicable tax percentage (see also 25%
tax over the amount of EGP 400,000/year) and provided translated evidence that it made
payments to the Egyptian Tax Authority in the respective amounts (i.e. 25% of 666,666 =
166,666 and 25% of 26,666 = 6,666).
ii. Consequences
14. Having stated the above, the Single Judge concluded that, considering that the allegedly
“outstanding amounts” are corresponding to the applicable tax, he shall reject the claim
of the Claimant.
d. Costs
15. 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, he decided that no procedural costs were to be
imposed on the parties.
16. 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.
17. Lastly, the Single Judge concluded his 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, Soloman Mensah, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 17 of the Procedural Rules).
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