Labour Disputes
Texto da decisão
REF. FPSD-14244
Decision of the
Dispute Resolution Chamber
passed on 8 October 2024
regarding an employment-related dispute concerning the player Amr Medat
Mohsen Warda
BY:
Frans DE WEGER (The Netherlands), Chairperson
Peter LUKASEK (Slovakia), Member
Oleg ZADUBROVSKIY (Russia), Member
CLAIMANT:
Doxa Katokopias, Cyprus
Represented by Mr. Duarte Costa
RESPONDENT:
Amr Medat Mohsen Warda, Egypt
INTERVENING PARTY:
Pharco SC, Egypt
Represented by Senn Ferrero Sports & Entertainment
pg. 2
REF. FPSD-14244
I. Facts of the case
1.
On 25 August 2023, the Egyptian player, Amr Medat Mohsen Warda (hereinafter: the Player
or the Claimant), and the Cypriot club, Doxa Katokopias (hereinafter: the Club or the
Respondent) entered into an employment contract (hereinafter: the Contract) valid as from
25 August 2023 until 31 May 2024.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant inter
alia a monthly salary payment of EUR 1,500 net.
3.
In accordance with the Contract, the parties agreed on the following termination provision:
“2.4 The Player shall have the right to notify in writing the Club by fax or email and immediately
terminate the present contract on or before 31st of December 2023 by compensating the Club
with an amount equal to €40.000 (Forty Thousand Euro). The amount shall be payable to the
Club maximum 7 (Seven) days after the notification. The contract will be deemed terminated as
from the date of notification.”
4.
On 27 August 2023, the Respondent arrived at Cyprus but was denied entry into the
country by the local authorities.
5.
By correspondence dated 30 August 2023, the Claimant requested clarification to the
Respondent regarding the denial of his entry into Cyprus and aiming to address a solution.
6.
On 31 August 2023, the Claimant sent a letter to the Cyprus authorities requesting
information regarding the Respondent’s entry denial to Cyprus.
7.
On 5 September 2023, the Egyptian club Pharco SC (hereinafter: the new Club or the
Intervening Party) and the Respondent entered into an employment agreement valid for
two seasons (i.e. sporting season 2023/24 and 2024/25).
8.
On 16 September 2023, the Claimant sent a termination notice to the Respondent.
9.
On 19 March 2024, the Cyprus local authorities disclosed the Respondent’s entry denial to
the Claimant:
“(…) 2. During the passport control he presented an Egyptian passport with number A29329216,
as well as proof of submitting an application for the renewal of his residence permit as an athlete
(football player) in Cyprus on 22/06/2023.
pg. 3
REF. FPSD-14244
3. From the check made in the system of the immigration records office, was found that the
foreigner's request was rejected. Then he was asked if he had a national entry visa or another
visa or residence permit with which he could be admitted to the Republic of Cyprus and he
presented a French passport with number 18EH05487.
4. During the check, reasonable suspicions were created that it was a fake document, which were
confirmed at a later stage and after a scientific examination of the document. When questioned,
the foreigner stated that he bought the fake document for the amount of €5000.
5. Based on the above, the mentioned foreigner was not considered a “bona fide” visitor and
therefore was not allowed to enter the Republic and departed on a private flight to Alexandria,
Egypt. (…)”
II. Proceedings before FIFA
10. On 28 March 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
11. The Claimant submits that, on 25 August 2023, the parties concluded a supplementary
agreement to the Contract (hereinafter: the Supplementary Agreement) valid as from 25
August 2025 until 31 May 2024.
12. According to the Claimant, the parties agreed under the terms of the Supplementary
Agreement on a monthly remuneration of EUR 15,000, as well as the following termination
provisions outlined in clauses 2 to 4:
“2. The Player shall have the right to notify in writing the club by fax or email and immediately
terminate the present contract on or before 31st December 2023 by compensating the Club
with an amount equal to €. 200.000 (two hundred thousand euro).The amount shall be
payable to the Club Maximum 7 (seven) days after the notification. The contract will be
deemed terminated as from the date of notification.
3. In the event that the player is unable to fulfil their contractual obligations and professional
activities with the Club, as professional football player, due to personal reasons (gross
misconduct, criminal offence with sentence of imprisonment, ban in connection with any
doping offense, suspension for any infringement of match-fixing and/or ethical rules) or
unresolved paperwork issues (expired passport, invalid travel documents, specific
immigration restrictions – not related to visa issues) the club reserves the right to immediately
terminate this contract with just cause.
pg. 4
REF. FPSD-14244
4. In the event of termination under Clause 3. above, the Club shall be entitled to
compensation in the agreed amount of 400.000 €. (Forty hundred thousand euros) which
both parties agreed as fair and proportional taking into consideration the impact of the
player's inability to perform on the team's overall objectives and performance.”
13. Additionally, the Claimant asserts that it incurred expenses amounting to EUR 42,000 for
chartering a private plane to transport the Respondent from Morocco to Cyprus.
14. Moreover, to the Claimant states that due to the Respondent’s alleged failure to fulfil his
contractual obligations, it sought to negotiate the transfer of the Respondent’s registration
rights with the Iranian club Esteghlal FC resulting in an offer consisting of a transfer fee of
USD 150,000 plus a 10% sell-on fee.
15. According to the Claimant, the Respondent breached his contractual obligations by:
-
Failing to regularize his personal documents, which would have allowed him entry into
Cyprus;
-
failing to respond to the Claimant’s emails requesting necessary information;
-
seeking new contracts in Egypt while still under an ongoing employment agreement with
the Claimant.
16. As a result, the Claimant asserts that it was entitled to terminate both the Contract and the
Supplementary Agreement with just cause, and maintains that the Respondent is liable to
pay compensation.
17. The Claimant asserts that it is entitled to EUR 400,000 as per Clauses 3 and 4 of the
Supplementary Agreement, along with reimbursement of EUR 42,000 for the private plane
costs, plus applicable interest.
18. Alternatively, the Claimant argues that it should receive compensation equal to the residual
value of both the Contract and the Supplementary Agreement, amounting to EUR 165,000,
together with the EUR 42,000 private plane costs, plus interest.
19. The requests for relief of the Claimant, were the following:
“i) Determine that the employment relationship between Claimant club and Respondent player
occurred through the agreed contracts, formalizing the agreement between the parties involved,
on 25 August 2023, is valid and binding.
ii) Determine that the claimant club unilaterally terminated the employment contract with the
respondent player, with just cause.
pg. 5
REF. FPSD-14244
iii) Order the respondent player to pay, as compensation, to the claimant club the amount of
€.400.000, plus 5% of interest as from 16 September 2023, or subsidiarily, the amount of €.
165.000 as the residual value of the contract, plus interest of 5% as of 16 September 2023 until
the date of effective payment. This payment shall be made on a net basis, free of any taxation,
the Respondent being responsible for the filling and payment of all taxes relating to this payment
due to the Claimant.
iv) Order the Respondent player to reimburse de claimant club in Euro. 42.000 for the private
flight expenses as demanded by the respondent player to travel from Casablanca to Larnaca;
v) Impose sporting sanctions to the Respondent player in accordance with article 17/A of the
FIFA RSTP;
vi) Order the Respondent player to bear any costs incurred with the present procedure; or,
vii) Subsidiarily, decide that the Parties engaged in negotiations, and the reason they did not
reach a final contract was due to the Player's breach of the culpa in contrahendo principle.
Therefore, order the Player to pay the compensation of €. 400.000 as agreed compensation, plus
5% of interest as from 16 September 2023, plus Euro. 42.000 for the private flight expenses as
demanded by the respondent player to travel from Casablanca to Larnaca.”
b. Position of the Respondent
20. Despite having been invited to do so, the Respondent failed to reply to the Claim.
c. New Club’s position
21. On 26 June 2024, the FIFA general secretariat invited the New Club to submit its
observations in view of the possible consequences of the termination of Contract pursuant
to art. 17 of the RSTP.
22. On 31 July 2024, the New Club submitted its comments on the matter stating that arts. 17.2
and 17.4 of the FIFA RSTP are not applicable to the case at hand.
23. Regarding art. 17.2 RSTP, the New Club claimed that the contractual relationship between
the Claimant and the Respondent never came into force.
24. In this respect, the New Club maintained that it was the responsibility of the Claimant to
secure the necessary visa and work permit for the Respondent. According to the New Club,
the Claimant's failure in this regard gave the Respondent just cause to terminate the
Contract.
pg. 6
REF. FPSD-14244
25. In addition, the New Club contested the Claimant’s request for EUR 42,000 as
reimbursement for the costs of a private plane trip, asserting that the Claimant had
unilaterally decided to incur these expenses.
26. On a subsidiary basis, the New Club argued that it cannot be held jointly and severally liable
to pay compensation for several reasons:
-
The New Club did not induce the Respondent to breach his contract with the Claimant;
-
the New Club signed the Respondent as a free agent; and
-
the circumstances under which the contractual relationship between the Claimant and
the Respondent ended were exceptional.
27. Moreover, the New Club argued that the Supplementary Agreement cited by the Claimant
has no binding effect because, according to the New Club, it was not agreed upon or signed
by the Respondent.
28. Consequently, and strictly on a subsidiary basis, the New Club argued that, should the DRC
determine that the Claimant is entitled to compensation, such compensation should only
amount to the residual value of the Contract, which the New Club calculated to be EUR
13,500.
29. On a second subsidiary basis, the New Club contended that if the DRC were to find the
Claimant entitled to compensation, such compensation should be limited to EUR 40,000,
as stipulated in Clause 2.4 of the Contract.
30. Regarding Article 17.4 of the FIFA RSTP, the New Club insisted it did not induce the
Respondent to breach the contract. It claimed to have acted in good faith, noting that the
contractual relationship was never executed because the Respondent could not enter
Cyprus and was ultimately terminated by the Claimant on 16 September 2023.
31. The requests for relief of the Intervening party were the following:
“a) The claim filed by the Claimant against the Player is fully dismissed.
Alternatively, on a subsidiary basis:
b) Pharco SC is not considered jointly and severally liable to pay any compensation to Doxa
under article 17.2 of the Regulations.
c) Pharco SC is not considered to have induced the Player to breach his contract under article
17.4 of the Regulations.
pg. 7
REF. FPSD-14244
Alternatively, on subsidiary basis:
d) The compensation to be paid to Doxa shall be limited to the maximum net sum of thirteen
thousand five hundred euros (€ 13,500) as the residual value of the contract.
In all cases:
e) Doxa is condemned to bear all the procedural costs of the present proceeding.”
pg. 8
REF. FPSD-14244
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
32. First of all, the Dispute Resolution Chamber (hereinafter: the 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 28 March 2024 and submitted for decision on
8 October 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.
33. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 an Egyptian player
and a Cypriot club.
34. 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 (June 2024 edition) and
considering that the present claim was lodged on 28 March 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
35. 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
36. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
pg. 9
REF. FPSD-14244
i. Main legal discussion and considerations
37. The foregoing having been established, the Chamber then moved to the substance of the
matter, and took note that it concerned a claim of a club against a player claiming
compensation for allegedly terminating the contract with just cause.
38. In particular, the Chamber noted that the Claimant’s alleges the employment relationship
between the parties was governed by two documents: the Contract and the Supplementary
Agreement.
39. The Chamber then determined its first task was to assess whether both documents could
be considered valid and binding.
40. After thoroughly analysing the Contract, the Chamber noted that the essential elements of
a contract are indeed present in the legal document concluded by the parties. In particular,
the Chamber highlighted that the document contains the signature of both parties,
provides for the duration of the employment relationship and the remuneration payable
to the Respondent, as well as clearly stipulates that the Respondent is employed as a
footballer with the Claimant. Additionally, the Chamber emphasized the Respondent’s
actions, particularly his attempt to enter Cyprus to provide his services as a football player,
reinforcing the Respondent’s consent to the obligations established in the Contract.
41. In continuation, the Chamber turned its attention to the Supplementary Agreement and
acknowledged that there was no signature from the Respondent in said document. In
addition, the Chamber observed that the Claimant failed to provide further evidence as to
the Respondent’s consent to the Supplementary Agreement.
42. In light of the above and taking into consideration the Claimant’s argumentation regarding
the inconsistencies of the alleged Supplementary Agreement, the Chamber understood
that the Claimant did not meet its burden of proof in order to demonstrate that the
Supplementary Agreement was indeed concluded with the Respondent.
43. Thus, the Chamber concluded that the Contract is the only valid and binding employment
contract concluded by the parties and shall be considered in the case at stake, as the
contractual basis of the present dispute.
44. That being established, the Chamber determined that its next task was to assess the
reasons by which the Respondent was unable to perform the Contract.
45. In this respect, the Chamber observed that it remained undisputed that the Respondent
did not start rendering his services to the Claimant under the Contract due to being denied
entry into Cyprus.
pg. 10
REF. FPSD-14244
46. Referring to the documentation on file, the Chamber took note that, on 27 August 2023,
the Respondent was denied entry into Cyprus by the local authorities. This decision was
further explained in a letter from the Cypriot authorities dated 19 March 2024.
47. In this respect, the Chamber acknowledged that the Respondent claimed before the
immigration authorities that his purpose for entering the country was to renew his
residence permit as a professional football player. However, the Cypriot authorities
indicated that this request was rejected.
48. Furthermore, the Chamber took note of the assertion that the Respondent, when
questioned by the authorities about whether he possessed “a national entry visa or
another visa or residence permit,” allegedly presented a falsified French passport.
49. The Chamber deemed it unnecessary to analyse the implications of the presentation of a
false document, as this matter falls outside its jurisdiction. Nonetheless, the Chamber
concluded that the primary reason for the Respondent’s denial of entry into Cyprus was
the lack of a valid visa or residence permit.
50. Additionally, the Chamber observed that the Claimant did not provide any evidence to
demonstrate that it undertook any efforts to ensure the Respondent obtained a visa or
work permit. The Chamber noted that the Claimant’s lack of proactive measures raised
significant concerns, particularly considering the Claimant’s role in ensuring compliance
with administrative requirements.
51. In this regard, the Chamber recalled its well-established jurisprudence, which dictates that
the engaging club bears the obligation to take all necessary administrative measures to
secure a work permit and/or visa for the player prior to the signing of the employment
contract. Accordingly, the majority of the members of the Chamber deemed that the
Claimant failed in its obligation to secure the Respondent’s visa and work permit for Cyprus,
which ultimately prevented the Respondent from entering the country and performing his
obligations under the Contract.
52. The Chamber referred to the timeline between the Respondent’s visa issues and his
subsequent signing with the new club acknowledging it was relatively short. However, the
Chamber considered the Claimant had first failed to fulfil with its responsibilities.
53. Moreover, the Chamber observed that, based on evidence provided, the Claimant
appeared to entertain offers for the Respondent during this period, which indicated a lack
of genuine interest in his services. This, combined with the Claimant’s lack of diligence in
addressing the visa issues, reinforced the Chamber’s conclusion that the Claimant failed to
act in good faith in fulfilling its obligations under the Contract.
54. In view of the above, the majority of the Chamber concluded that the Claimant did not have
just cause to terminate the Contract and therefore its claim must be entirely rejected.
pg. 11
REF. FPSD-14244
d. Costs
55. 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.
56. 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.
57. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-14244
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Doxa Katokopias, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-14244
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14