Labour Disputes
Texto da decisão
REF FPSD-2873
Decision of the
Dispute Resolution Chamber
passed on 28 October 2021
regarding an employment-related dispute concerning the player Kevin
Muhire
BY:
Frans de Weger (Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT / COUNTER-RESPONDENT:
Kevin Muhire, Rwanda
Represented by Ms Melanie Schärer
RESPONDENT / COUNTER-CLAIMANT:
Misr Makassa, Egypt
Represented by Mr Salvatore Civale
INTERVENING PARTY:
Talaea El Gaish SC, Egypt
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REF FPSD-2873
I.
Facts of the case
1.
On 15 January 2019, the Rwandan player, Kevin Muhire (hereinafter: the Claimant / CounterRespondent), and the Egyptian club, Misr Makassa (hereinafter: the Respondent / CounterClaimant) signed a preliminary agreement valid from the date of signature until 30 June 2022.
2.
In accordance with article 2 of the preliminary agreement, the Respondent / CounterClaimant undertook to pay to the Claimant / Counter-Respondent inter alia a total amount
of USD 320,000 payable as follows:
USD 35,000 for 2018/2019 season, payable as follows:
- USD 17,500 to be paid upon signing the contract;
- USD 17,500 to be paid in 5 instalments by the end of each month at USD 3,500.
USD 85,000 for 2019/2020 season payable as follows:
- USD 21,250 to be paid on 1 August 2019;
- USD 21,250 to be paid on 1 January 2020;
- USD 42,500 to be paid in 10 instalments by the end of each month at USD 4,250.
USD 90,000 for season 2020/2021 payable as follows:
- USD 22,500 to be paid on 1 August2020;
- USD 22,500 to be paid on 1 January 2021;
- USD 45,000 to be paid in 10 instalments by the end of each month at USD 4,500.
USD 110,000 for season 2021/2022 payable as follows:
- USD 27,500, to be paid on 1 August2021;
- USD 27,500, to be paid on 1 January 2022;
- USD 55,000, to be paid in 10 instalments by the end of each month at USD 5,500.
3.
Additionally, article 11 of the preliminary agreement states that “parties irrevocably declare
that this agreement is fully subjected and will only become valid after both parties sign the
HA standard contract”.
4.
On 21 January 2019, the parties signed a contract on the Egyptian Football Association (EFA)
standard template, valid for the same period of time, i.e. 15 January 2019 until 30 June 2022,
based on which the Claimant / Counter-Respondent was entitled to the total amount of USD
205,000, payable as follows:
- USD 25,000 for the 2018/2019 season, payable as USD 5,000 per month from January until
May 2019;
- USD 50,000 for the 2019/2020 season, payable as USD 2,500 per month from June 2019
until December 2019 and USD 12,500 payable on 1 May 2020;
- USD 60,000 for the 2020/2021 season (USD 15,000 payable on 1 June 2020, 10 monthly
instalments of USD 3,000 and USD 15,000 payable on 1 May 2021);
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- USD 70,000 for the 2021/2022 season (USD 17,500 payable on 1 June 2021, 10 monthly
instalment of USD 3,500 and USD 17,500 payable on 1 May 2022.
5.
Article 4.3 of the contract states that “it should not consider any supplements out of this
contract”.
6.
Furthermore, article 4.5 of the contract states that “the player shall bear the taxes of this
contract and other remuneration according to the law”.
7.
A few days after signing the contract with the Respondent / Counter-Claimant, the Claimant
/ Counter-Respondent was transferred on loan to Egyptian club El Dakhlia, Egypt from 1
January 2019, until the end of the 2018/2019 season.
8.
The Claimant/counter-Respondent returned to the Respondent / Counter-Claimant in the
period between 1 July 2019 to 31 December 2019. During this time, the Claimant / CounterRespondent apparently trained with the first team of the Respondent / Counter-Claimant,
but did not participate in any matches.
9.
On 15 January 2020, the Claimant/counter-Respondent signed a new contract the Egyptian
club Talaea El Gaish, valid from January 2020 until the end of the season 2019/2020.
10. According to the information contained in the TMS, the contract between the Claimant /
Counter-Respondent and Talaea El Gaish expired on 31 October 2020 and on 18 March 2021,
he was transferred from Talaea El Gaish SC to the Omani club Saham.
11. By correspondence dated 2 February 2021, the Claimant / Counter-Respondent put the
Respondent / Counter-Claimant in default of payment of USD 36,000, consisting of the
outstanding salaries for the months of December 2020 to January 2021, as well as the sign
on fee (USD 30,000), setting a time limit of 15 days in order to remedy the default.
12. On 6 December 2020, the Respondent / Counter-Claimant allegedly “unilaterally terminated
the contract with the Claimant / Counter-Respondent”.
13. On 10 June 2021, the Claimant / Counter-Respondent apparently requested the Respondent
/ Counter-Claimant to send him a copy the termination letter and to contact him regarding
the settlement of the amounts owed to him within the next seven days. However, to no avail.
II. Proceedings before FIFA
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14. On 22 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, during the (alleged) loans to El Dakhlia and
Talaea El Gaish (hereinafter: the Intervening Party), the respective clubs took over the payment
of his monthly salary, but not the payment of the lump sums owed to him in instalments.
16. On 6 December 2020, the last day of the first registration period of the 2020/2021 season,
the Respondent / Counter-Claimant apparently informed the Claimant / Counter-Respondent
that they were no longer counting on him and that he should leave the club. As a result, the
Claimant / Counter-Respondent submits that the Respondent / Counter-Claimant on said day
terminated his contract without just cause.
17. In view of these events and their sequence, the Claimant / Counter-Respondent submits that
he played for the Respondent / Counter-Claimant during the second half of January 2019,
from July to December 2019 and in November 2020.
18. For these seven and a half months, the Claimant / Counter-Respondent submits that he is
entitled to a remuneration according to the contract with the Respondent / Counter-Claimant
in the amount of USD 110,000, corresponding to the following amounts:
-
USD 19,250 (the signing lump sum of USD 17,500 + half of the monthly salary of USD
3,500 = USD 1,750) for half of the month January 2019;
-
USD 42,500 (the lump sum of USD 21,250 of 1 August 2019 and 5 monthly salaries of
USD 4,250 = USD 21,250) from July to December 2019;
-
USD 48,250 (the outstanding lump sum of USD 21,250 due on1 January 2020, the
outstanding lump sum of USD 22,500 due on 1 August 2020 and the November 2020
salary in the amount of USD 4,500).
19. However, the Claimant / Counter-Respondent adds that he only received USD 37,500 from
the Respondent / Counter-Claimant for his services until his contract was terminated on 6
December 2020.
20. The Claimant / Counter-Respondent adds that despite contacting the Respondent / CounterClaimant requesting it to provide him with a copy of the termination letter and inviting it to
reach a settlement, the Respondent / Counter-Claimant did not reply.
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21. As a result of the above, the Claimant / Counter-Respondent demands that the
Respondent/counter-Claimant pays him USD 72,500 (USD 110,000 – USD 37,500) as
outstanding remuneration for the seasons 2018/2019, 2019/2020 and 2020/2021.
22. In addition, the Claimant / Counter-Respondent demands that the Respondent / CounterClaimant pays him USD 159,500 as compensation for breach of contract corresponding to
the residual value of the contract based on art. 17 par. 1 of the Regulations, plus interest at
a rate of 5% p.a. on the compensation.
b. Position of the Respondent / Counter-Claimant
23. The Respondent / Counter-Claimant in its reply states that the Claimant / CounterRespondent has omitted to mention the fundamental facts that occurred in this case in the
attempt to mislead the FIFA DRC and files a counter claim against the Claimant / CounterRespondent.
24. According to the Respondent / Counter-Claimant, on 15 January 2019, the parties signed a
preliminary contract under which the Claimant / Counter-Respondent formally accepted the
club’s offer of employment as professional football player for three and half sporting seasons,
i.e. from January 2019 until July 2022.
25. Pursuant to article 11 of the Agreement the “Parties irrevocably declare that this agreement
is fully subjected and will only become valid after both sign the EFA standard contract”.
26. The Respondent / Counter-Claimant submits that after a period of short trial, it was not really
satisfied with the Claimant / Counter-Respondent’s technical and physical skills and was ready
to cancel the agreement. However, the parties - after negotiation - decided to go ahead with
the deal by amending the financial value of the employment contract, which was decreased
and agreed in the total amount of USD 205,000 gross for the entire duration.
27. In that regard, the Respondent / Counter-Claimant submits that on 21 January 2019, the
parties signed a contract on the EFA standard template in both English and Arabic languages.
28. With the above in mind, the Respondent / Counter-Claimant emphasizes that the sole
contract that must be considered in the case at stake is the one freely signed on 21 January
2019, in which the parties negotiated and agreed some adjustments to the previous
preliminary agreement. In fact, according to the Respondent / Counter-Claimant, the parties
expressly and freely agreed to entirely replace the preliminary agreement with the contract
which is the only uploaded on TMS and of course registered with EFA.
29. According to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent hid –
in bad faith – the EFA standard contract, attaching to his claim exclusively the preliminary
agreement.
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30. In continuation, the Respondent / Counter-Claimant submits that immediately after the
signature of the contract, with the agreement of the parties, the Claimant / CounterRespondent was transferred on loan to another Egyptian club, El Dakhlia until the end of the
sporting season 2018/2019, i.e. 30 June 2019.
31. During the month of December 2019, the Respondent / Counter-Claimant submits that the
Claimant / Counter-Respondent apparently “informed it that he wanted to play with
continuity and requested a cancellation of the contract but the Club could not guarantee his
request”.
32. The Respondent / Counter-Claimant adds that unfortunately, the Claimant / CounterRespondent did not respect its instructions and left with the excuse that he was not registered
to compete in the Egyptian Premier League, which actually was not false, since in light of his
level and his young age, the Respondent / Counter-Claimant deemed it was a good choice,
for his benefit to train and work with the first team in order to gain chance to play in the
future.
33. According to the Respondent / Counter-Claimant, the Claimant / Counter-Respondent was
not registered for official matches for its club in the system of the Egyptian FA. Such a
circumstance is common practice in Egypt allow another club to offer a contract to such a
player who is already in the country, if his signature does not require the request and issuance
of an ITC. The “local free agent player registration” with the Egyptian FA is possible under
the above conditions.
34. In view of the above, the Respondent / Counter-Claimant submits that on 1 January 2020,
the Claimant / Counter-Respondent signed a contract with the Egyptian club Talaea El Gaish
as a free agent, valid until the end of the sporting season 2019/2020, i.e. 30 October 2020
”as recognized by him but – on the other side – tries to mislead the Chamber by saying – in
procedural bad faith - that he was there on loan”.
35. According to the Respondent / Counter-Claimant, there was no loan agreement between it
and Talaea El Gaish and that by signing another contract with another club and playing official
matches with such a Club, the Claimant / Counter-Respondent, de facto, has unilaterally
terminated the employment relationship with it on 1 January 2020.
36. The Respondent / Counter-Claimant therefore submits that it is undisputed that the Claimant
/ Counter-Respondent transferred to El Dakhlia on loan from the Respondent / CounterClaimant while he signed with the club Talaea El Gaish on permanent basis, as free agent as
confirmed by the EFA.
37. Therefore, contrary to the Claimant / Counter-Respondent’s allegations, the Respondent /
Counter-Claimant submits that it never terminated the contract, but it was the Claimant /
Counter-Respondent who – de facto - unilaterally terminated the contract with the
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Respondent / Counter-Claimant by signing a definitive new employment contract with
another club on 1 January 2020.
38. According to the Respondent / Counter-Claimant, on 12 March 2021, the Claimant /
Counter-Respondent signed another contract with the Omani club Saham and on 24 April
2021, he transferred back to Rayon Sports Club in Rwanda. Strangely enough, it adds that
the Claimant / Counter-Respondent omitted to refer also to these 2 contracts in his
representation of the facts.
39. Moreover, for the sake of completeness, the Respondent / Counter-Claimant underlines that
all amounts provided in the contract are to be considered gross and, as a consequence, all
taxes due to the Egyptian Tax Authority are deducted from the player’s salaries by the Club
(as employer). More precisely, as recognized by the Claimant / Counter-Respondent in his
claim, the Respondent / Counter-Claimant paid him the total net amount of USD 37,500, i.e.
the salaries from July to December 2019, plus an additional amount to cover a probable
period of unemployment.
40. At the same time – with regard the year 2019 - the Respondent / Counter-Claimant submits
that it paid all amounts provided in the contract as taxes to the Egyptian Tax Authority, i.e.
USD 8,437 as income tax at rate of 22.5%, plus USD 3,750 pursuant to article 48, Clause
(H), point 7 of the Law n. 63/2010.
41. In regards to the requested amounts by the Claimant / Counter-Respondent, the Respondent
/ Counter-Claimant submits that these requests are unfounded because:
a)
The sole employment contract valid between the parties is the “contract of professional
football player” of the total gross amount of USD 205,000 signed on Monday, 21
January 2019, and not the preliminary agreement;
b)
It never unilaterally terminated the contract without just cause, but it was the Claimant
/ Counter-Respondent who terminated it on 1 January 2020 when he decided to sign a
contract with another Club;
c)
it had paid all the amount due in accordance with the contract until the month of
December 2019.
42. Taking into account the fact that it paid USD 37,500 to the Claimant / Counter-Respondent
for the 2019/2020 season, the Respondent / Counter-Claimant submits that the Claimant /
Counter-Respondent was with the Respondent / Counter-Claimant from July to December
2019 and, therefore, he was entitled to receive the gross amount of USD 15,000 (USD 2,500
x 6 months in accordance with article 2 of the Contract), i.e. the net amount of USD 10,115
(applied the deduction of USD 3,375 as taxes at rate of 22.5%, plus USD 1,500 as taxes at
rate of 10% pursuant to article 48, Clause (H), point 7 of the Law n. 63/2010). Therefore, it
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is clear that the Claimant / Counter-Respondent received all amounts due until the month of
December 2019 with a surplus of USD 27,385.
43. In light of the above, the Respondent / Counter-Claimant requests that the Claimant /
Counter-Respondent’s request of payment relevant to the monthly salaries from July to
December 2019 be rejected.
44. The Respondent / Counter-Claimant also argues that seeing as the Claimant / CounterRespondent unilaterally terminated the contract by joining another Club, his request for
compensation is rejected too.
45. In continuation, the Respondent / Counter-Claimant submits that in the event that the FIFA
DRC determines that compensation is due to the Claimant / Counter-Respondent, it should
be taken into account that he signed 2 subsequent contracts with other clubs and therefore
in accordance with the principle of “positive interest” and the duty of mitigation, the
compensation must be reduced of the entire value of the employment contracts signed
between the Claimant / Counter-Respondent and the new clubs.
46. Additionally, the Respondent / Counter-Claimant lodged a counterclaim against the Claimant
/ Counter-Respondent, stating that he clearly committed a serious breach of contract when
he unilaterally terminated the contract without just cause on 1 January 2020 by signing a
new contract with the Club El Gaish.
47. In this respect, the Respondent / Counter-Claimant submits a counterclaim against the
Claimant / Counter-Respondent as follows:
- USD 30,000 as transfer paid to ensure his service (or the quota not amortized as the
Chamber will deem appropriate);
- USD 155,000 as remaining value of the contract considering the basic salary due from 1
January 2020 until 30 June 2022 date of the natural expiration of the contract.
48. Additionally, in view of the arguments pointed out by the Respondent / Counter-Claimant, it
requests that the Claimant / Counter-Respondent be ordered to disclose all documentation
linked to the signature of the employment contract with Saham Club (Oman) and Rayon
Sports Club (Rwanda), including sign-on fee, bonuses, sponsorship contracts, fees paid to
agents involved and any other payment within this concept.
49. In conclusion, the Respondent / Counter-Claimant requests that the FIFA DRC:
• ascertains that the sole contract valid between the parties is the one signed on 21
January 2019; and, as a consequence;
• to reject in full the Claimant / Counter-Respondent’s claim;
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• accept the counterclaim of the Respondent / Counter-Claimant and award in its favour a
total compensation of USD 185,000 in light of the breach of contract.
On a subsidiary basis, the Respondent / Counter-Claimant submits that in case the FIFA DRC
upholds the Claimant / Counter-Respondent’s allegation on the termination - such a
compensation must be indicated as gross with its right to deduct the taxes in Egypt of 25%
+ 10% + 3%, i.e. a net amount of USD 46,594.25, less the entire value of the new contracts
signed by the Claimant / Counter-Respondent with Saham Club and Rayon Sports Club, as
follows:
• to consider the application of sporting sanction against the Claimant / CounterRespondent for the breach committed on 1 January 2020;
• to apply any other measure it considers necessary in the decision of the case at stake.
c. Claimant / Counter-Respondent’s response to the counterclaim
50. In response to the counterclaim and the reply of the Respondent / Counter-Claimant, the
Claimant / Counter Respondent first of all stated that it is undisputed that the preliminary
agreement of 15 January 2019 contains all essentiala negotii. Moreover, the condition for its
validity agreed in clause 11 of the employment contract, the signing of a standard contract,
has obviously also been fulfilled. The contract therefore became legally valid on 21 January
2019 at the latest with the signing of the standard contract which then took place.
51. According to the Claimant / Counter-Respondent, as the contract clearly defined the terms
of employment, he assumed in good faith that the standard contract would contain the same
terms as the employment contract and was a mere formality with regard to his registration
for the club with the EFA.
52. The Claimant / Counter-Respondent adds that unfortunately, this was not the case, as the
financial conditions of the standard contract differed significantly from those of the contract
to his disadvantage. According to the standard contract of 21 January 2019, which allegedly
governs the employment relationship between the club and the player, the latter is not
entitled to a net salary of USD 320,000 without tax deductions for his footballing activities
for the entire duration of the contractual relationship of three and a half years, as originally
agreed, but only a gross salary of USD 205,000 with significant tax deductions.
53. The Claimant / Counter-respondent states that he was not aware of the contents of the
standard contract, in particular the financial conditions that differed from the employment
contract, and never received a copy of the standard contract, which is why the allegation of
bad faith withholding of the standard contract when filing his claim is completely unfounded.
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54. According to the Claimant / Counter-Respondent, having already decided and joined the club
on the basis of the employment contract signed on 15 January 2019, he had no choice at all,
but to sign the standard contract which contains much worse conditions for him. Therefore,
the Claimant/Counter-Respondent submits that the terms of the contract in question did not
correspond to his will.
55. The Claimant / Counter-Respondent adds that the fact that the terms of the standard contract
did not correspond to his free will is all the more cleare when one considers that in the transfer
agreement between his previous club, the Rwandan club Rayon Sports, dated 17 January
2019, the parties had agreed that the Respondent / Counter-Claimant would definitively take
over the player from Rayon Sports on 15 January 2019.
56. Consequently, the Claimant / Counter-Respondent submits that it is obvious that he only
agreed to the early termination of the contract with Rayon Sports because he had already
signed a new contract with the club at that time. The existence of the employment contract
with the club, in which the terms of employment were clearly regulated, was therefore a
conditio sine qua non for the termination of the contract with Rayon Sports.
57. The Claimant / Counter-Respondent further adds that - if he had not signed the standard
contract, which is necessary for the validity of the employment contract - he would have been
left without a contract guaranteeing him an income and the exercise of his profession. Since
such a situation of not having a contract at all would have been absolutely unacceptable for
him not only financially but also from a sporting point of view, he was forced to sign the
standard contract with the Respondent, even though the content of this contract did not
correspond to his will at all. Consequently, he found himself in a predicament to accept the
new terms of employment imposed by the Respondent / Counter-Claimant.
58. According to the Claimant / Counter-Respondent, the Respondent / Counter-Claimant’s
modification of the contractual terms after the termination of his contract with the previous
club Rayon Sports is to be considered a breach of the principle of good faith and thus abusive
from the outset. Therefore, the standard contract cannot legally replace the terms of
employment according to the employment contract.
59. It is also disputed that the Respondent / Counter-Claimant did not evaluate the player's skills
in detail before signing the employment and transfer contract, and only, as claimed, got an
idea of his technical and physical skills during the "short trial period" following the conclusion
of the employment contract on 15 January 2019. The Claimant / Counter-Respondent
submits that no club would seriously think of signing a contract with a player before the trial
period, as the contract is already binding with the signature.
60. Accordingly, the Claimant / Counter-Respondent notes that the Respondent / CounterClaimant failed to submit any evidence of the alleged trial period and the alleged complete
change in the assessment of his abilities during this period, which allegedly led to the
apparent initial intention to “cancel” the employment contract or to the eventual change in
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its terms. In any case, the Claimant / Counter-Respondent states that the alleged action of
the Respondent / Counter-Claimant does not make sense, is not proven and therefore
qualifies as a bad faith protection claim.
61. For all these reasons, the Claimant / Counter-Respondent concludes that the content of the
standard contract is null and void and must be disregarded in the present case. Instead, the
financial terms of the contract must be used to assess the claims against the Respondent /
Counter-Claimant.
62. In regards to the Respondent / Counter-Claimant’s submission that he terminated the
contract by signing a new contract, the Claimant / Counter-Respondent submits that this
allegation lacks any basis and must be rejected. The Claimant / Counter-Respondent reiterates
that the contract was not terminated by him on 1 January 2020, but by the Respondent on
6 December 2020.
63. According to the Claimant / Counter-Respondent, although the termination of the contract
by the Respondent / Counter-Claimant on 6 December 2020, which was made without giving
reasons, is not available in written form, it is to be considered proven on the basis of the
present circumstances.
64. The Claimant / Counter-Respondent adds that his request to the Respondent / CounterClaimant to provide him with a copy of the letter of termination went unanswered. Since the
termination of 6 December 2020 was not contested, it must be assumed that the Respondent
/ Counter-Claimant acknowledged the termination of the contract at that time. This
conclusion is supported by the fact that he left Egypt and returned to his home country
Rwanda on 11 December 2020, shortly after being notified of the termination of his contract.
65. As regards any contracts concluded by the Claimant / Counter-Respondent with a new club
after the termination of the contract with the Respondent / Counter-Claimant, the Claimant
/ Counter-Respondent refers to the confidentiality of such documents, but submits that he is
’happy to submit such contracts upon FIFA's request’.
66. 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
rejected.
67. The Claimant / Counter-Respondent’s new club, the Intervening Party, in response stated that
the player was contracted with it starting from January 2020 until the end of the 2019/2020
season.
68. The Intervening Party adds that after the end of the aforementioned season, the Claimant /
Counter-Respondent’s relationship with the club ended after the Claimant / CounterRespondent signed a declaration that ensured that the player had received all his financial
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dues for the period of his contract with the club, and the player also admitted that he was
not entitled to file a complaint in this regard.
69. As a result, the Intervening Party concludes that it has nothing to do with the current dispute.
70. The Claimant / Counter-Respondent signed a new contract with the Intervening a, based on
which he was entitled to receive an amount of EGP 200,000 (approximately USD 12,707)
from January 2020 until October 2020.
71. Additionally, on 12 March 2021, he signed another contract with the Omani club Saham,
valid from the date of signing until 12 May 2021 for a total amount of USD 7,519.35.
72. On 24 April 2021, he signed another contract with the Rwandan club Rayon Sport valid until
16 June 2021 for a total amount of USD 3,003.33.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
73. 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 22 June 2021 and submitted for decision
on 28 October 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.
74. 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 in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Rwandan player and an Egyptian club, with the involvement of another Egyptian club.
75. 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 22 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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b. Burden of proof
76. 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
77. 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,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
78. The foregoing having been established, the Chamber moved to the substance of the matter
and took note of the fact that the parties had signed two different contracts and that they
strongly disagree on which contract should apply to the current dispute.
79. The Chamber further noted that according to the Claimant / Counter-Respondent, the
Respondent / Counter-Claimant terminated the contractual relationship which existed
between them without just cause and that as a result he is entitled to outstanding
remuneration and compensation. On the other hand, the Chamber also noted the
Respondent / Counter-Claimant’s submission that it was the Claimant / Counter-Respondent
who terminated the contract without just cause, by signing a new contract with another club
in Egypt, filing a counterclaim for compensation for breach of contract, payable to it by the
Claimant / Counter-Respondent.
80. In this context, the Chamber acknowledged that its task was to determine which contract
applies to the current dispute, whether a termination of said contract had occurred and if so,
which party had terminated the contract and whether said termination was with or without
just cause.
81. To start with, the Chamber noted that it is uncontested that on 15 January 2019, the parties
signed a preliminary agreement at a value of USD 320,000 but later signed a contract on the
EFA standard template for USD 205,000 on 21 January 2019.
82. With the above in mind, the Chamber deemed that by signing the second contract on 21
January 2019, the parties had established a valid and binding employment relationship that
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superseded the previous preliminary agreement which contained all the essentialia negotii.
Taking into account the above and article 3.4 of the second contract, the Chamber concluded
that the present dispute and the consequences thereof shall be based on the terms and
conditions agreed to in the contract concluded between the parties on 21 January 2019.
83. Having determined the applicable contract, the Chamber proceeded to determine which
party had terminated said contract, when said termination took place and whether this
termination was made with or without just cause.
84. In this context, the Chamber noted – om the one hand – that the Claimant / CounterRespondent submitted some documentation and explanations as to the alleged termination
of the contract on 6 December 2020 by the Respondent / Counter-Claimant, however that
none of these documents could – to the satisfaction of the members of the Chamber –
demonstrate that the termination of the contract had indeed taken place on said date
85. On the other hand, and in continuation and based on the submissions on file, the members
of the Chamber noted that there was sufficient evidence on file, on the basis of which it could
be concluded that the Claimant / Counter-Respondent had signed a new contract with the
Intervening Party on 1 January 2020, at which point in time he was also still under contract
with the Respondent/Counter-Claimant. As such, the members of the Chamber concluded
that by signing a new contract on 1 January 2020, the Claimant / Counter-Respondent had
effectively terminated the contract with the Respondent/Counter-Claimant.
86. As to whether said termination was with or without just cause, the members of the Chamber
deemed it relevant to take into account, despite the fact the Claimant/Counter-Respondent
was still under contract with the Respondent / Counter-Claimant, it had to also focus on the
conduct of the Respondent / Counter-Claimant. From the information on file, it turned out
that the Respondent / Counter-Claimant had registered the Claimant/Counter-Respondent at
all, as a result of which the latter was prevented from playing in official matches, as well as
that it loaned to Claimant / Counter-Respondent at the very start of the contract (as confirmed
by the Respondent / Counter-Claimant) directly to the Egyptian club El Dakhlia. Based ln the
following circumstances, the members of the Chamber concluded that the Respondent /
Counter-Claimant was not sincerely interested in the services of the Claimant / CounterRespondent and therefore, the Claimant / Counter-Respondent had terminated the contract
with just cause.
87. Based on the foregoing, the Chamber concluded that the Respondent / Counter-Claimant is
responsible for the consequences of such termination and that the Claimant / CounterRespondent is entitled outstanding remuneration, if any, and compensation for breach of
contract. At this point, the members of the Chamber decided reject the counterclaim of the
Respondent / Counter-Claimant.
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ii. Consequences
88. 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 Respondent.
89. Taking into account the submissions on file, the Chamber noted that in accordance with the
contract, the Claimant was in principle entitled to a total amount of USD 205,000, as well as
that the contract between the parties was however suspended in the period the Claimant /
Counter-Respondent was on loan (31 January 2019 – 30 June 2019) and that both parties
confirm that the Claimant received a total amount of USD 37,500.
90. In continuation, the Chamber took note of the Respondent / Counter-Claimant’s submission
that the amounts due to the Claimant / Counter-Respondent were subject to tax. In this
regard and taking into account article 4.5 of the contract, the members of the Chamber
agreed that said taxes were indeed payable by the Claimant / counter-Respondent, but noted
that the Respondent / Counter-Claimant had not submitted any evidence that said taxes were
actually paid to the relevant tax authorities, based on the invoked provisions of Egyptian tax
law and/or that said taxes were indeed remitted to the relevant tax office in Egypt.
91. Additionally, taking into account the specific wording of article 4.5 of the contract which
states that “the player shall bear the taxes of this contract and other remuneration according
to the law”, the Chamber concluded that the contract contains a clear clause as to the tax
responsibility of the parties, in this case, the Claimant / Counter-Respondent and therefore
proceeded to reject the Respondent / Counter-Claimant’s argument in this regard.
92. In continuation, the members of the Chamber took into account the period of time that the
Claimant/counter Respondent was loaned to another club, El Dakhlia, Egypt (31 January 2019
until 30 June 2019) and given that the Claimant signed a new contract with a new club in
January 2020. With this mind, the Chamber deemed that the Respondent / Counter-Claimant
was only liable to pay the Claimant / Counter-Respondent’s salaries from 1 July 2019 until 31
December 2020 for a total amount of USD 15,000, i.e. 6 monthly salaries of USD 2,500 each.
93. At this point, the Chamber recalled that it remained uncontested that the Claimant/counterRespondent received a total amount of USD 37,500 from the Respondent/counter-Claimant.
94. With the above in mind, the Chamber deemed that taking into account the loan period when
the Respondent/counter-Claimant was not liable to pay salaries to the Claimant-counterRespondent and the amount of USD 37,500 already paid, there was no outstanding
remuneration due to the Claimant/counter-Respondent at the moment of the termination of
the contract. The Chamber also noted that, if anything, the Respondent/counter-Claimant
had in fact overpaid the Claimant/Counter-Respondent by USD 22,500 (USD 37,500-15,000).
95. As a consequence, the Chamber decided that there was no outstanding remuneration due
to the Claimant/counter-Respondent.
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96. 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.
97. 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.
98. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
99. 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 /
Counter-Respondent under the terms of the contract from the date of its unilateral
termination until its end date. Consequently, the Chamber concluded that the amount of
USD 142,500 (USD 12,500, payable on 1 May 2020, USD 60,000 for the 2020/21 season and
USD 70,000 for the 2021/22 season) shall serve as the basis for the final determination of the
amount of compensation for breach of contract.
100.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.
101.In this regard, the Chamber noted that the Claimant / Counter-Respondent had – since the
unilateral termination of the contract with the Respondent / Counter-Claimant, signed three
new contracts and mitigated his losses by a total amount of USD 23,229.68, as follows:
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- a contract with the Intervening Party for EGP 200,000 (approximately USD 12,707);
- a contract with the Omani club Saham for a total amount of USD 7,519.35;
- a contract with the Rwandan club Rayon Sport for a total amount of USD 3,003.33.
102.With the above in mind, the Chamber deemed that in principle the Claimant / CounterRespondent is entitled to the mitigated amount of USD 119,270.32 (USD 142,500 - USD
23,229.68) as compensation for breach of contract.
103.However, the Chamber recalled that the Respondent / Counter-Claimant had overpaid the
amount of USD 22,500 (cf. point III./88. and III./89. above) and concluded that such overpaid
amount shall be deducted from the final compensation due to the Claimant / CounterRespondent.
104.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 96,770.32 (USD 119,270.32 - USD 22,500) to the Claimant / CounterRespondent which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
105.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 18 May 2021,
the date of claim, until the date of effective payment.
iii. Compliance with monetary decisions
106.Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the concerned
party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
107.In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
108.Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
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three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
109.The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
110.The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8 of
the Regulations.
d. Costs
111.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.
112.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.
113.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, Robert de Souza Ribeiro, is partially
accepted.
2.
The counterclaim of the Respondent / Counter-Claimant is rejected.
3.
The Respondent / Counter-Claimant, Misr Makassa, has to pay to the Claimant, USD
96,770.32 as compensation for breach of contract, plus 5% interest p.a. as from 22 June
2021 until the date of effective payment.
4.
Any further claims of the Claimant/counter-Respondent are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24bis 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.
7. The consequences shall only be enforced at the request of the Claimant/counterRespondent in accordance with article 24bis par. 7 and 8 and art. 25 of the Regulations on
the Status and Transfer of Players.
8. 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
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