Labour Disputes
Texto da decisão
REF FPSD-5481
Decision of the
Dispute Resolution Chamber
passed on 8 June 2022
regarding an employment-related dispute concerning the player Hamdi Naguez
BY:
Daan DE JONG (The Netherlands)
CLAIMANT:
El Zamalek, Egypt
RESPONDENT:
Hamdi Naguez, Tunisia
REF FPSD-5481
I Facts
1. El Zamalek and the player Hamdi Naguez concluded a preliminary contract valid as from 2021 until
2024.
2. On 7 October 2021, the parties concluded an amendment to a “preliminary employment contract”
that was signed in September.
3. The amendment stipulated the following:
“Article 2:
1. Both Parties agree that they terminate the First preliminary Contract without any legal
effect on both parties and the Player will abandon and waive totally all his rights deriving
from his Preliminary contract under the first season 2021/2022.
(…)
Article 3:
i. In respect of the above, the First Party agrees to sign new Employment contract with the Player for
2 seasons starting from season 2022/2023 to season 2023/2024 (''New Contract").
ii. The Parties declare and confirm that the Player accepted and will be obliged to pay to the First
Party a net amount of 450,000 USD (Four hundred and fifty thousand US Dollars) in return for the
Club accepting the termination of the Preliminary Agreement on 5 instalments as follows:.
1. 100,000 USD (one hundred thousand USD) on 30 October 2021
2. 100,000 USD (one hundred thousand USD) on 30 December 2021
3. 100,000 USD ( one hundred thousand USD) on 28 February 2022
4. 100,000 USD (one hundred thousand USD) on 30 April 2022
5. 50,000 USD (fifty thousand USD) on 30 June 2022”
4. On 10 October 2021, the player transferred to the Saudi Arabian club, Al Ahli, from the Tunisian
club, ES Tunis.
5. On 12 February 2022, the club sent a letter to the player, indicating the following:
“despite our several requests addressed to you which remained not replied, you have
not paid the amount of 100,000 USO due to the Club on 30 December 2021.
In light of the above, we have no other choice than invite you for the last time to pay the above
mentioned amount within a final term of 15 days .”
6. On 16 March 2022, El Zamalek lodged a claim before FIFA for outstanding payment and requested
the amount of USD 100,000 net, corresponding to the instalment due on 30 December 2021, plus
5% interest p.a. as from 331 December 2021.
7. In its reply to the claim, the Respondent explained that he did not receive his salaries from Al Ahli,
namely from October 2021 until January 2022 and that, in fact, this motivated a new claim under
the reference FPSD-5045.
8. In his replica, the Claimant considered that the Respondent’s objection that he is not receiving the
financial needs in Saudi Arabia does not represent a valid reason for avoiding respecting his
obligations.
REF FPSD-5481
II Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Single Judge) analysed
whether he was competent to deal with the case at hand. In this respect, he took note that the
present matter was presented to FIFA on 16 March 2022 and submitted for decision on 08 June
2022. 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.
2. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit.
b) of the Regulations on the Status and Transfer of Players (August 2021 edition), he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Egyptian club and a Tunisian player.
3. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (March 2022 edition), and considering
that the present claim was lodged on 16 March 2022, the March 2022 edition 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, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge emphasised that in the following considerations 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
REF FPSD-5481
6. The Single Judge first observed that the parties initially concluded a “preliminary contract” (cf. point
I.1 above), but noted that, afterwards, on 7 October 2021, they concluded an amendment to said
contract according to which the player committed to pay the total amount of USD 450,000 “in return
for the Club accepting the termination of the Preliminary Agreement”. The Single Judge noted that
said amount was payable as follows:
- 100,000 USD on 30 October 2021
- 100,000 USD on 30 December 2021
- 100,000 USD on 28 February 2022
- 100,000 USD on 30 April 2022
- 50,000 USD on 30 June 2022”
7. Subsequently, the Single Judge noted that, on 16 March 2022, and after having put the player in
default, the club lodged a claim by means of which it requested the payment of the amount of USD
100,000, due on 30 December 2021.
8. On the other hand, the Single Judge took into account the player’s position, and noted that he
acknowledged his debt but argued that he faced economic troubles as he was not paid in his new
club in Saudi Arabia.
9. In view of the above, the Single Judge considered that, under any circumstance, the player
contractually accepted to pay the amount of USD 100,000 on 30 December 2021, regardless of his
situation with his new club in Saudi Arabia, insofar the Claimant cannot be held liable in this regard.
10. Therefore, in accordance with the principle of pacta sunt servanda, the Single Judge established that
player should pay the amount USD 100 000.
11. Moreover, considering the request of the Claimant as well as the longstanding jurisprudence in this
regard, the Single Judge decided to award 5% interest p.a. over said amount as from the due date.
REF FPSD-5481
ii. Compliance with monetary decisions
12. Finally, considering the applicable Regulations, the Single Judge referred to art. 24 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.
13. In this regard, the Single Judge highlighted that, against players, the consequence of the failure
to pay the relevant amounts in due time shall consist of a restriction on playing in official matches
up until the due amounts are paid. The overall maximum duration of the restriction shall be of
up to six months.
14. Therefore, bearing in mind the above, the Single Judge decided that the player must pay the full
amount due (including all applicable interest) to the club within 45 days of notification of the
decision, failing which, at the request of the creditor, a restriction on playing in official matches
for the maximum duration of six months shall become immediately effective on the player in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
15. The player shall make full payment (including all applicable interest) to the bank account provided
by the club in the Bank Account Registration Form, which is attached to the present decision.
16. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to
its complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the
Regulations.
d. Costs
17. 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.
18. Furthermore, 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.
19. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-5481
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, El Zamalek, is accepted.
2.
The Respondent, Hamdi Naguez, has to pay to the Claimant, the amount of USD 100,000 as
outstanding payment, plus 5% interest p.a. as from 31 December 2021 until the date of effective
payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1.
2.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-5481
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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