Labour Disputes
Texto da decisão
REF. FPSD-9787
Decision of the
Dispute Resolution Chamber
passed on 29 November 2023
regarding an employment-related dispute concerning
the player Ferjani Sassi
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Angela Collins (Australia), member
Laurel Vaurasi (Fiji), member
CLAIMANT / COUNTER-RESPONDENT I:
Ferjani Sassi, Tunisia
Represented by Mohamed Ali Bouraoui
RESPONDENT / COUNTER-CLAIMANT:
El Zamalek, Egypt
Represented by Nasr El-din Azzam
COUNTER-RESPONDENT II:
Al-Duhail SC, Qatar
Represented by MCA Sports Law
pg. 2
REF. FPSD-9787
I. Facts of the case
1.
On 29 July 2018, the Tunisian player, Ferjani Sassi (hereinafter: Claimant/CounterRespondent or player) and the Egyptian club, Zamalek SC (hereinafter: club or
Respondent/Counter-Claimant) concluded 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
2020/2021 in Egypt ended on 26 August 2021, extended due to the impact of COVID-19.
3.
According to the contract (“Deuxièmement: Contrepartie due contrat”), the total salary
amounts to EUR 5,677,420, due as follows:
4.
5.
Art. 4.1 of the contract states: “le présent contrat doit être inscrit et le club se charge des frais
d'inscription qui seront répartis à parts égales entre le club et le joueur. ”
Free translation: “This contract must be signed and the club will pay the registration fees, which
will be shared equally between the club and the player.”
6.
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.
pg. 3
REF. FPSD-9787
7.
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.
8.
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.
9.
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.
10. 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.
11. On 7 June 2021, the player left Egypt to join the Tunisian national team.
12. On 18 July 2021, the club sent a letter to Al Duhail SC, who was in negotiations with the
player, informed it about the dispute and the current contract with the player.
13. On 27 July 2021, the player signed an employment contract with the Qatari club, Al Duhail
SC, valid as from 27 July 2021 until 30 June 2024, including the following payments:
- USD 1,191,000 as “signing fee” on 30 August 2021;
- USD 250,000 as monthly salary (for 11 months) during the season 2021/2022;
- USD 228,500 as monthly salary during the season 2022/2023;
- USD 208,500 as monthly salary during the season 2023/2024.
II. Proceedings
14. On 16 July 2021, the player filed the initial claim before FIFA for outstanding remuneration
(Claim reference number FPSD-3070).
15. On 9 December 2021, the DRC rendered a decision declaring the counterclaim of Zamalek
SC inadmissible, and awarding the player outstanding remuneration.
pg. 4
REF. FPSD-9787
16. On 27 March 2023, the Court of Arbitration for Sport decided to set the decision FPSD-3070
aside, declared the counterclaim admissible and referred the matter back to FIFA (CAS
2022/A/8679.
17. A brief summary of the position of the parties is detailed in continuation.
a. Position of the player
18. On 16 July 2021, the player lodged a claim against the Respondent in front of FIFA and
requested payment of the following monies:
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”.
19. 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 COVID19. 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.
20. 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.
21. 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.
22. 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 in connection with alleged fines.
pg. 5
REF. FPSD-9787
23. The player rejected the imposition of fines/deductions as he maintains not having been
informed.
24. 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.
25. 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.
26. 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 club / Counterclaim
27. In its reply, the club rejected the player’s claim and lodged a counterclaim against the player
and his new club requesting payment of the following monies (note: no interest requested):
- EUR 337,447.32 as compensation for breach of contract (residual value);
- EUR 903,225 as compensation for breach of contract (specificity of sport);
- EUR 2,200,000 “or an amount proportionate to the value” of the new contract “as
transfer fee”;
The club requested to declare the new club jointly and severally liable and to impose
sporting sanctions.
28. As to the player’s claim for outstanding remuneration, the club argued having fulfilled its
financial obligations.
29. The club maintained that the claim for outstanding remuneration from the season
2018/2019 is time-barred.
30. The club held that it remitted the following amounts to the player:
- EUR 1,346,852.95 during the season 2019/2020;
- EUR 966,817.89 during the season 2020/2021.
31. On account of the above, the club argued that all amounts due to the player were remitted
“after applicable & deductible taxes and EFA fees”.
32. According to the club, the player was entitled to the following gross amounts:
- EUR 1,806,450 during season 2019/2020;
- EUR 1,805,450 during season 2020/2021.
33. The club argued that the player had to pay “half of the registration fee which is 3%” of the
contract payable to the Egyptian Football Association, based on art. 4.1 of the contract.
pg. 6
REF. FPSD-9787
34. In this framework, the club held that it made the deductions of EUR 27,096.78 (3% of EUR
1,806,450=EUR 54,193.56; player pays half of it) during both seasons 2019/2020 and
2020/2021.
35. Moreover, the club argued that the net amount the player was entitled to for both seasons
was EUR 1,146,778 and not EUR 1,400,000 as claimed. Those amounts take into account
the Egyptian tax laws and the above-mentioned registration fee deduction.
36. Furthermore, the club submitted that the applicable taxes had to be deducted from the
player’s entitlements.
37. The club added that the player never protested against the deductions before his default
notice.
c. Player’s reply to the counterclaim
38. In his reply to the counterclaim, the player reiterated his position and rejected the
counterclaim.
39. He amended his initial claim and requested the following payments as outstanding
remuneration:
pg. 7
REF. FPSD-9787
40. The player pointed out that the club was not entitled to deduct any amounts from his net
entitlements, which was established in art. 5 of the contract.
41. As the contract established the net amounts, the club was not entitled to deduct any taxes
based on Egyptian law.
42. Further, the player held that the deduction for the registration fee was not valid as art. 4.1
of the contract was not specific enough.
43. Moreover, the disciplinary fines deducted are not valid since he was not informed about
any proceedings.
44. According to the player, the club is using alleged disciplinary sanctions to set off their debt
with the player.
45. He brought forward that he could not object to those deductions in detail since the club
from the beginning of the contract paid irregularly and it was not clear what the
paid/unpaid amounts correspond to. He held this cannot be held against him as he did not
accept the deductions and is still entitled to claim the full amounts.
46. Regarding the contract expiration, the player argued that at the time of the conclusion of
the contract, 31 May 2021 was the end of the season 2020/2021 and therefore the end
date of the contract, to which both parties agreed upon.
47. The player held that the club has no right to “extend” the contract unilaterally due to COVID19 and that he never agreed to any extension.
48. He also maintained that the Egyptian Football Association’s decision to extend the season
does not automatically extend his contract.
49. What is more, the player held that if one would follow the club’s argumentation that the
player would have had to render his services for 3 more months without any remuneration.
d. Al Duhail’s Reply to the counterclaim
50. In its reply to the counterclaim, Al Duhail rejected the club’s counterclaim.
51. The player’s new club pointed out that the contract expired on 31 May 2021 and that
eventuality, the player had just cause to terminate the contract on 5 June 2021, due to
outstanding remuneration.
52. In this framework, Al Duhail emphasized that it was free to conclude an employment
contract with the player, almost 2 months after the expiration/termination.
pg. 8
REF. FPSD-9787
53. Al Duhail pointed out that the club made irregular payments from the beginning of the
contractual relationship with the player and that the annexes to the counterclaim are not
in order and that it is therefore impossible to establish which payments were effectively
remitted.
54. According to Al Duhail, the club used its power to deduct money from the player’s
entitlements in bad faith as it invented disciplinary procedures.
55. Even thought the contract clearly established net payments, the club remitted the total
amount of EUR 3,529,597.63 instead of the full EUR 4,400,000 (art. 5 of the contract), as
follows:
- EUR 1,369,032.26/- for the football season 2018/2019,
- EUR 1,295,647.48/- for the football season 2019/2020; and
- EUR 864,917.89/- for the football season 2020/2021.
56. Despite the default notice of the player, said amounts remained outstanding on 31 May
2021 and 5 June 2021.
e. Final comments of the club
57. In its final comments, the club reiterated its position.
58. It pointed out that the contract refers to the deduction of the registration fee (art. 4.1) and
the deduction for taxes (art. 5.5) and that the club was entitled to deduct fines for
disciplinary measures.
59. The club referred to the player’s amended request and stated that he is not claiming any
amounts resulting from the season 2018/2019 anymore since it was time-barred.
60. Further, the club held that the bonuses claimed in his amendment as well as his higher
request for salaries are time-barred as well as they were not claimed in his initial claim.
61. In this framework, the club detailed the payments for the season 2020/2021 as follows:
62. Regarding the season 2020/2021, the club held that the player acknowledged receipt of the
amount of EUR 887,020, to which EUR 79,733 have to be added (payment dated 22
December 2021), resulting in a total amount of EUR 966,753. In this regard, the club
submitted the following calculation, which results in an overpayment of the player:
pg. 9
REF. FPSD-9787
63. On account of the above, the club held that the player had no just cause to terminate the
contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
64. 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 initial claim was presented to FIFA on 16 July 2021 and submitted for the
present decision on 29 November 2023. 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.
65. 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 (May 2023 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 player and a club.
66. 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 (May 2023 edition), and
considering that the present claim was lodged on 16 July 2021, the January 2021 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
pg. 10
REF. FPSD-9787
b. Burden of proof
67. 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
68. 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
69. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the player’s entitlement
to outstanding remuneration.
70. In this context, the Chamber acknowledged that its task was to decide if the player was
indeed entitled to outstanding remuneration or if the player breached the contract.
71. The DRC duly noted that in its counterclaim, the club essentially argues that it fulfilled all
of its financial obligations to the player and that he had no just cause to terminate the
contract on 5 June 2021. It maintained that the season was not finished on 31 May 2021
since it was extended due to COVID-19 to 30 August 2021. On account of the above, the
club requested compensation for breach of contract (including joint liability of the new
club).
72. In this framework, the members of the Chamber wished to emphasize that first of all it has
to be established what the contract’s end date was 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. The player held that the contract expired on 31 May 2021,
as originally foreseen, before the season was extended. The club does not dispute that this
was the date foreseen when the contract was signed and taking into account the payment
dates defined in the contract (last one is 26 May 2021), the DRC concluded that the contract
indeed expired on 31 May 2021. Furthermore, a contract is not automatically extended due
to COVID-19.
pg. 11
REF. FPSD-9787
73. On account of the above, the Chamber established that there was no contract termination
before 31 May 2021 and therefore, the counterclaim of the club was rejected.
74. The Chamber continued to analyse if the club indeed fulfilled its financial obligations to the
player or not.
75. In this regard, the player amended his requests with his reply to the counterclaim.
Therefore, the player is limited to the amounts claimed in his initial claim.
76. At this point, the Chamber referred to art. 25 par. 5 of the Regulations, 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.
77. 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.
78. 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.
79. The DRC further maintained that the player acknowledged receipt of EUR 1,295,647.48 for
the football season 2019/2020; and EUR 864,917.89 for the football season 2020/2021,
whereby he was entitled to net amounts of EUR 1,400,000 for each season. This would lead
to an entitlement of EUR 104,352.52 for the season 2019/2020 and EUR 535,082.11 for
season 2020/2021. In his amendment, the player reduced his request for season
2020/2021 to EUR 512,979.25:
80. The Chamber took notice of the club’s argumentation, according to which hat it was entitled
to deduct the following amounts:
A) Registration fee
Said deduction is based on art. 4.1 of the contract which indeed mentions that
those fees shall be borne by both parties. Therefore, due to the clear wording
of the relevant clause, the members of the DRC concluded that a deduction in
the amounts of EUR 27,096.78 (half of the 3%) for each season shall be applied.
pg. 12
REF. FPSD-9787
B) Applicable taxes in Egypt
The Chamber pointed out that the contract clearly establishes net amounts due
to the player (art. 5.3 and 5.5). The fact that art. 4.5 of the contract mentions
deductions for taxes is to a certain point contradictory, however the club cannot
hold such unclear provision against the player when the contract clearly
establishes net amounts due to him. Therefore, the DRC decided to disregard
the tax reductions alleged by the club.
C) Disciplinary fines
In this regard, the Chamber established that the club failed to submit
documentation that such disciplinary fines were imposed while respecting due
process and that the player’s right to be heard was respected. The DRC decided
to disregard such deductions. In any way, fines for disciplinary sanctions shall
not be used to set off with the salary, in accordance with the Chamber’s
jurisprudence.
ii. Consequences
81. The Chamber observed that the financial obligations deemed as outstanding in the present
case correspond to the following amounts:
-
EUR 210,425.27 (EUR 237,522.05- EUR 27,096.78) for the season 2019/2020;
EUR 485,882.47 (EUR 512,979.25 - EUR 27,096.78) for the season 2020/2021.
82. 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, as detailed above.
83. 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 1 June 2020 and 1 June 2021 respectively,
until the date of effective payment.
iii. Compliance with monetary decisions
84. 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
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
pg. 13
REF. FPSD-9787
85. 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.
86. 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. 24 par. 2, 4, and 7 of the Regulations.
87. 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.
88. 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. 24 par. 8 of
the Regulations.
d. Costs
89. 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.
90. 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.
91. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 14
REF. FPSD-9787
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent I, Ferjani Sassi, is partially accepted insofar
it is admissible.
2.
The Respondent / Counter-Claimant, El Zamalek, must pay to the Claimant the following
amount(s):
- EUR 210,425.27 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020
until the date of effective payment;
- EUR 485,882.47 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021
until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent I are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
The counterclaim of the Respondent / Counter-Claimant is rejected.
6.
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 / Counter-Claimant 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 / CounterRespondent I in accordance with art. 24 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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REF. FPSD-9787
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).
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pg. 16