Labour Disputes
Texto da decisão
REF. FPSD-12903
Decision of the
Dispute Resolution Chamber
passed on 18 April 2024
regarding an employment-related dispute concerning
the player Hamdi Naguez
COMPOSITION:
Martín Auletta (Argentina), Deputy Chairperson
Khalid Awad Al Thebity (Saudi Arabia), member
Roy Vermeer (the Netherlands), member
CLAIMANT:
El Zamalek, Egypt
Represented by Mr Salvatore Civale
RESPONDENT:
Hamdi Naguez, Tunisia
Represented by Mr Anis Ben Mime
pg. 3
REF. FPSD-12903
I. Facts of the case
1.
On 26 July 2022, El Zamalek (hereinafter: Claimant or club) and Hamdi Naguez (hereinafter:
player or Respondent) concluded a settlement agreement (hereinafter: the Agreement) in
which it was agreed that the player would pay the club an amount of USD 350,000 as
rescheduled amounts claimed previously in matters before the Football Tribunal, with
references, FPSD-5481, FPSD-6171 and FPSD-6707.
2.
In accordance with the Agreement, said compensation was payable in the following
instalments:
-
USD 110,000 by no later than 1 January 2023;
USD 130,000 by no later than 1 June 2023;
USD 110,000 by no later than 1 August 2023.
3.
Furthermore, in accordance with the Agreement, the Claimant and the Respondent agreed
that, if the Respondent delayed payment of any of the stipulated amounts by 30 days, a
penalty of USD 50,000 was payable by the latter.
4.
On 13 April 2023, the Claimant lodged a claim against the player for failing to pay the first
instalment under the Agreement, due on 1 January 2023. Said claim obtained the reference
number FPSD-9925.
5.
On 6 July 2023, the Single Judge of the Dispute Resolution Chamber passed a decision in
the matter FPSD-9925.
6.
Following such decision, there appeared to be no further exchange of correspondence or
default notices between the parties.
II. Proceedings before FIFA
7.
On 2 December 2023, 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
8.
According to the Claimant, the Respondent failed to comply with the terms of the
Agreement, by failing to remit the contractually stipulated amount of USD 110,000, due on
1 August 2023, despite a grace period of 30 days following the due date as well as a formal
deadline of 10 days to remedy the alleged breach having passed.
pg. 4
REF. FPSD-12903
9.
By way of consequence, the Claimant argued that not only the principal amount became
due, but also a contractual penalty of USD 50,000.
10. The Claimant emphasised that such contractual penalty is entirely proportionate, in
accordance with the jurisprudence of FIFA.
11. Therefore, the Claimant requested outstanding remuneration of USD 110,000, as well as a
contractual penalty of USD 50,000.
12. Lastly, the Claimant requested interest of 5% p.a. as from 2 August 2023 until the date of
effective payment.
b. Position of the Respondent
13. The Respondent acknowledged that the amount remained unpaid, however justified said
non-payment with financial difficulties caused by previous proceedings involving another
club.
14. As to the contractual penalty of USD 50,000, the Respondent argued that said penalty is
grossly disproportionate, amounting to almost half of the principal debt.
15. Consequently, whilst acknowledging the amount of USD 110,000, the Respondent insisted
that the penalty clause should not be applied, and consequently no amounts beyond the
principal debt should be paid.
pg. 5
REF. FPSD-12903
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 2 December 2023 and
submitted for decision on 18 April 2024. Taking into account the wording of art. 34 of the
March 2023 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.
17. Subsequently, 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 (February 2024 edition), it is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international
dimension between a club from Egypt and a player from Tunisia.
18. Thereafter, 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 (February 2023
edition), and considering that the present claim was lodged on 2 December 2023, the
July 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
b. Burden of proof
19. 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
20. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, it 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.
pg. 6
REF. FPSD-12903
i. Main legal discussion and considerations
21. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties, whilst agreeing on the outstanding
principal amount, disagree on the lawfulness of the contractual penalty and the obligation
arising therefrom to pay an additional amount of USD 50,000.
22. In this context, the Chamber acknowledged that its task was to determine whether or not
the contractual penalty set out in the Agreement was, in accordance with the jurisprudence
of the Football Tribunal, proportionate and if, in addition to the principal amount of
USD 110,000, the contractual penalty of USD 50,000 would be payable to the Claimant.
23. In this respect, the Chamber firstly revisited the wording of the provision in question, which
stated as follows:
“In case of any delay in the payment of an/any instalment exceeding 30 days, a delay
penalty equal to USD 50,000 will be applied.”
24. Having recapitulated the above, the Chamber noted that the amount of USD 50,000
corresponded to approximately 45% of the outstanding amount of USD 110,000 being
presently claimed, as well as 14.3% of the total sum of USD 350,000 stipulated under the
Agreement.
25. Subsequently, the Chamber recalled the jurisprudence of the Football Tribunal, inter alia
FPSD-8971, in which a contractual penalty of USD 90,000, which corresponded to 10% of
the total amount due under the respective agreement, and 50% of the unpaid amount
claimed in said matter, was considered as proportionate.
26. Thus, the Chamber considered that the penalty clause is entirely proportionate, and should
be upheld in the case at hand.
27. Based on all the above the Chamber decided that the Respondent must pay the Claimant,
in accordance with the general legal principle of pacta sunt servanda, a total outstanding
amount of USD 110,000, as well as a contractual penalty of USD 50,000.
28. Lastly, and in accordance with the principle of ne bis in idem, the Chamber decided to award
interest on the amount of USD 110,000 only, applicable at the standard rate of 5% p.a. as
from 2 August 2023 until the date of effective payment.
ii. Compliance with monetary decisions
29. Finally, taking into account the applicable Regulations, the Chamber 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
pg. 7
REF. FPSD-12903
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
30. In this regard, the Chamber 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.
31. Therefore, bearing in mind the above, the Chamber 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.
32. 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.
33. The Chamber 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
34. 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.
35. 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.
36. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-12903
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, El Zamalek, is accepted.
2.
The Respondent, Hamdi Naguez, must pay to the Claimant the following amount(s):
- USD 110,000 as outstanding remuneration plus 5% interest p.a. as from 2 August 2023
until the date of effective payment;
- USD 50,000 as contractual penalty.
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. The Respondent shall be imposed with 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 on playing in official matches.
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.
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
pg. 9
REF. FPSD-12903
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 Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 10