Labour Disputes
Texto da decisão
REF FPSD-3070
Decision of the
Dispute Resolution Chamber
passed on 9 December 2021
regarding an employment-related dispute concerning the player Ferjani
Sassi
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Khadija Timera (Senegal), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Ferjani Sassi, Tunisia
Represented by Mohamed Ali Bouraoui
RESPONDENT:
Zamalek SC, Egypt
Represented by Nasr El-din Azzam
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REF FPSD-3070
I.
Facts of the case
1.
On 29 July 2018, the Tunisian player, Ferjani Sassi (hereinafter: the Claimant), and the
Egyptian club, Zamalek SC (hereinafter: the Respondent) signed an employment contract
(hereinafter: contract) valid for 3 seasons starting from season 2018/2019 until 2020/2021.
2.
According to the information contained in the Transfer Matching System (TMS), the season
2021/2021 in Egypt ended on 26 August 2021.
3.
According to the contract (“Deuxièmement: Contrepartie due contrat”), the total salary
amounts to EUR 5,677,420, due as follows:
4.
According to art. 4.5 of the contract reads as follows: “Le joueur se charge des impots dus a
l'occasion du présent contrat et toutes les récompenses d'une autre nature conformément à
la loi, et le club est tenu de les déduire des montants dus au joueur et les verser aux impots,
sous sa responsabilité".
Free translation : The player shall be responsible for the taxes due in connection with this
contract and any other rewards in accordance with the law, and the club shall be obliged to
deduct them from the amounts due to the player and pay them to the taxes, under its
responsibility.
5.
According to art. 5.3 to 5.5 of the contract, the net amounts due to the player correspond
to:
- EUR 1,600,000 for the season 2018/2019;
- EUR 1,400,000 for the season 2019/2020;
- EUR 1,400,000 for the season 2020/2021.
6.
On 15 May 2021, the Claimant put the Respondent in default while referring to the end date
of the contract on 31 May 2021 and requested payment of EUR 729,845.95 within 15 days.
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7.
On 29 May 2021, the Respondent replied to the player and pointed out that the contract
would not expire on 31 May 2021 as the season is not yet finished by then. Further, the club
maintained that it already paid the total amount of EUR 914,918 during the season
2020/2021, which is what the player is entitled to as he was sanctioned throughout the
season and salaries were deducted.
8.
On 5 June 2021, the Claimant replied to the Respondent acknowledging receipt of the
payment of EUR 250,000, but insisting that the amount of EUR 539,845.95 remains
outstanding. The player argued that the contract expired on 31 May 2021, but alternatively
terminated the contract in accordance with art. 14bis RSTP with effect as of 1 June 2021,
due to the outstanding remuneration.
9.
II. Proceedings before FIFA
10. On 16 July 2021, 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
11. The Claimant lodged requested payment of the following monies:
12. Furthermore, the Claimant requested to be provided with “the relevant tax certificate
indicating the specific withholding taxes levied on the amounts paid to the Player during the
term of the contractual relationship between the parties”.
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13. In his claim, the player held that the season 2020/2021 was supposed to end on 31 May 2021
at the time the contract was concluded, before such date was adjusted due to COVID-19. In
this regard, the player held that the club never contacted him to negotiate an extension. On
account of the above, the Claimant held that the contract expired on 31 May 2021.
14. In support of his argumentation, the player brought forward that his last salary was due on
26 May 2021. Furthermore, he submitted a printout of a previous “FIFA transfer window
calendar” which shows 31 May 2021 as end date for the season in question. The player held
that the club cannot unilaterally extend the contract.
15. Moreover, the player argued that the contract clearly established that he is entitled to the
total net amount of EUR 4,400,000, without any deductions.
16. During the exchange of correspondence with the club, the player was provided with an
overview of the payments and deductions by the club during the seasons 2019/2020 and
2020/2021 n connection with alleged fines.
17. The player rejected the imposition of fines/deductions as he maintains not having been
informed.
18. The Claimant held that the amount of EUR 230,967 remained unpaid in the season
2018/2019 and that the club failed to provide an overview regarding this season.
19. Regarding the season 2019/2020, the player acknowledged receipt of EUR 1,295,647.18,
which led him to claim the net amount of EUR 104,352.52 for this season.
20. Regarding the season 2020/2021, the player held that a portion of his advance payment (EUR
167,342.11) remained outstanding, as well as the amount of EUR 367,740.
b. Position of the Respondent
21. The Respondent was given a time-limit until 15 September 2021 to submit its reply to the
claim.
22. Subsequently, FIFA received the reply to the claim, including a counterclaim, on 22 September
2021 from a DHL courier. According to the information available from DHL, the shipment
was delivered to DHL on 20 September 2021, i.e. after the deadline given by FIFA.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 16 July 2021 and submitted for decision on
9 December 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.
24. 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
employment-related dispute with an international dimension between a Tunisian player and
an Egyptian club.
25. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 16 July 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
26. 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
27. 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.
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28. Subsequently, the DRC observed that the Respondent, in spite of having been invited to do
so, had, for its part, failed to present its response to the claim of the Claimant within the
relevant time limit set by FIFA, i.e. 15 September 2021. In fact, the reply of the Respondent
was delivered to DHL on 20 September 2021 and arrived with FIFA on 22 September 2021.
29. In this regard, the Chamber noted the allegation of the Respondent that it had delivered the
submission to a local courier on 15 September 2021, before it was given to DHL on 20
September 2021. The DRC analysed the documentation on file, especially the alleged receipt
of the local courier and concluded that the Respondent did not submit sufficient proof of its
allegation. The alleged receipt of the courier does not contain the date 15 September 2021
and there is no reference to the case.
30. On account of the above, the DRC concluded that the reply as well as the counterclaim was
submitted on 20 September 2021, the date it was dispatched to DHL and five days after the
time-limit had expired.
31. As a result, bearing in mind the Chamber’s constant jurisprudence in this regard and in
application of art. 21 of the Procedural Rules, the Chamber decided not to take into account
the reply and the counterclaim of the Respondent and established that, in accordance with
the aforementioned provision, it shall take a decision on the basis of those documents on file
that were provided prior to the deadline set by FIFA, in casu, on the statements and
documents presented by the Claimant.
32. On account of the above, the DRC declared the counterclaim of the Respondent inadmissible.
i. Main legal discussion and considerations
33. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the main question of the dispute is if the player is entitled to
the payment of certain outstanding remuneration.
34. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the latter had a valid justification for not having
complied with its financial obligations.
35. The Chamber first noted that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the
parties.
36. First of all, the DRC started to establish the contract’s end date as the contract was supposed
to end “at the end of the season 2020/2021” and since such date was changed during the
course of the contract due to COVID-19.
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37. In this regard, the Chamber noted that tthe player held that the contract expired on 31 May
2021, as originally foreseen, before the season was extended. Since his argumentation
remained undisputed, the DRC concluded that the contract indeed expired on 31 May 2021.
38. Furthermore, the members of the Chamber maintained that the player’s claim for outstanding
remuneration remained uncontested by the club.
39. At this point, the Chamber referred to art. 25 par. 5 of the Regulations (edition February
2021), which stipulates that the decision-making bodies of FIFA shall not hear any dispute if
more than two years have elapsed since the facts leading to the dispute arose. The application
of this time limit shall be examined ex officio in each individual case.
40. In this context, the Chamber recalled that the present claim was lodged in front of FIFA on
16 July 2021. Therefore, in line with art. 25 par. 5 of the Regulations, any amounts fallen due
before 16 July 2019 are affected by the statute of limitations.
41. The Chamber noted that, in the present case, the Claimant inter alia requested the payment
of monies due from the season 2018/2019. The Chamber thus concluded that the Claimant’s
request is partially time-barred. Consequently, the specific part of the Claimant’s claim related
to the payment of monies due from the season 2018/2019 is considered inadmissible.
42. Subsequently, the DRC acknowledged that the player’s claim regarding the outstanding
remuneration of the seasons 2019/2020 and 2020/2021 is substantiated and therefore shall
be awarded. According to the contract, the Claimant appeared to be entitled to established
net amounts.
ii. Consequences
43. The Chamber observed that the financial obligations deemed as outstanding in the present
case correspond to the monies claimed related to the seasons 2019/2020 and 2020/2021.
44. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
claimed as outstanding under the contract, detailed as follows:
- EUR 104,352.52, corresponding to outstanding remuneration resulting from the season
2019/2020;
- EUR 167,342.11 corresponding to the residual portion of his advance payment;
- EUR 367,740, corresponding to outstanding remuneration resulting from the season
2020/2021.
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45. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
46. Furthermore, the Chamber ordered the club to provide the tax certificate as the club was
contractually obliged to pay the taxes.
iii. Compliance with monetary decisions
47. 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.
48. 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.
49. 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
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.
50. 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.
51. 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.
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d. Costs
52. 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.
53. 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.
54. 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, Ferjani Sassi, is partially accepted insofar it is admissible.
2.
The Respondent, Zamalek SC , has to pay to the Claimant, the following amount:
- EUR 104,352.52 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020
until the date of effective payment;
- EUR 167,342.11 as outstanding remuneration plus 5% interest p.a. as from 27 July 2020
until the date of effective payment;
- EUR 367,740 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021
until the date of effective payment.
3.
The Respondent is ordered to remit the relevant tax certificates.
4.
Any further claims of the Claimant 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 (February 2021
edition), 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 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.
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 in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
8. The counterclaim of the Respondent is inadmissible.
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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