Labour Disputes
Texto da decisão
REF. FPSD-12740
Decision of the
Dispute Resolution Chamber
passed on 11 January 2024
regarding an employment-related dispute concerning
the player Innocent Waziri
BY:
Andre Megale (Brazil), Brazil
CLAIMANT:
Innocent Waziri, Nigeria
Represented by Sport Makers
RESPONDENT:
El Mahalla El Kobra SC, Egypt
Represented by Mohammed Mitwally
pg. 2
REF. FPSD-12740
I. Facts of the case
1.
On 28 January 2023, the Nigerian player, Innocent Waziri (hereinafter: Claimant or player)
and the Egyptian club, El Mahalla El Kobra SC (hereinafter: club or Respondent) concluded
an employment contract (hereinafter: contract) valid as from 28 January 2023 until the “end
of the season 2024/2025”.
2.
According to the information contained in the Transfer Matching System (TMS), the
sporting season 2024/2025 in Egypt ends on 15 June 2025.
3.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
- Egyptian Pound (EGP) 10,000 (approx. USD 320) on 28 February 2023;
- EGP 10,000 on 30 March 2023;
- EGP 10,000 on 30 May 2023;
- EGP 10,000 on 30 June 2023;
- EGP 10,000 on 30 September 2023;
- EGP 10,000 on 30 October 2023;
- EGP 10,000 on 30 May 2024;
- EGP 10,000 on 30 June 2024;
- EGP 10,000 on 30 September 2024;
- EGP 10,000 on 30 October 2024;
- EGP 10,000 on 30 January 2025;
- EGP 10,000 on 30 March 2025;
- EGP 10,000 on 30 May 2025;
- EGP 10,000 on 30 June 2025.
4.
Art. 6 of the contract establishes, inter alia:
“Season 2022/2023
After the end of sports season an amount one hundred-fifty thousand (EGP) for
participation in the matches.
In the event that the team is promoted to the Egyptian premier league, an amount of sixty
thousand (EGP) will be spent.
Season 2023/2024
After the end of sports season an amount two hundred-ninety thousand (EGP) for
participation in the matches.
In the event that the team is promoted to the Egyptian premier league, an amount of sixty
thousand (EGP) will be spent.
Season 2024/2025
After the end of sports season an amount three hundred twenty-five thousand (EGP) for
participation in the matches.
In the event that the team is promoted to the Egyptian premier league, an amount of sixty
thousand (EGP) will be spent.”
pg. 3
REF. FPSD-12740
5.
On 22 October 2023, the Claimant put the Respondent in default and requested payment
of EGP 540,000 within 15 days. Further, the player also protested against being
deregistered.
6.
On 7 November 2023, the player terminated the contract with the Respondent due to the
outstanding remuneration as well as the deregistration.
7.
The player confirmed that he remained unemployed until today.
II. Proceedings before FIFA
8.
On 20 November 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
9.
In his claim, the player requested payment of the following monies:
-
EGP 560,000 as outstanding remuneration plus 5% interest as of the due dates,
as follows:
-
EGP 570,000 as compensation for breach of contract plus 5% interest p.a. as of 7
November 2023, as follows:
-
USD 5,000 as legal fees.
10. In his claim, the player argued that the club deregistered the player before the start of the
season 2023/2024. Further, the player held that the club failed to remit any remuneration
resulting from the contract.
11. On account of the above, the player maintained that he had just cause to terminate the
contract based on art. 14bis RSTP, after having put the club in default.
12. The player pointed out that he fulfilled his contractual obligations.
b. Position of the Respondent
13. The Respondent failed to reply to the claim.
pg. 4
REF. FPSD-12740
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge (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 20 November 2023 and submitted for decision
on 11 January 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.
15. 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 (May 2023), he
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an player and a club.
16. 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 (May 2023 edition), and
considering that the present claim was lodged on 20 November 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
17. 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 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
18. 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 it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
pg. 5
REF. FPSD-12740
i. Main legal discussion and considerations
19. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the matter at hand concerns a claim of a player
against a club for breach of contract.
20. In this context, the Single Judge acknowledged that his task was to decide if the player
terminated the contract with just cause and if so, to decide on the consequences thereof.
21. The Single Judge duly noted that according to the player, he terminated the contract with
just cause due to outstanding remuneration and since the club deregistered him.
22. The Respondent, for its part, failed to present its response to the claim of the player, in
spite of having been invited to do so. In this way, the Single Judge considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of the
Claimant.
23. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concurred that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
24. The Claimant claims not having received his remuneration corresponding to salaries of
more than 6 months as well as bonus payments. Furthermore, the Single Judge noted that
the player has provided written evidence of having put the Respondent in default on 22
October 2023, i.e. at least 15 days before unilaterally terminating the contract on 7
November 2023.
25. The Single Judge further acknowledged 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. Nonetheless, the Respondent failed to do so.
26. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally
terminate the contract, based on art. 14bis of the Regulations.
ii. Consequences
27. Having stated the above, the members of the Single Judge turned his attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
pg. 6
REF. FPSD-12740
28. The Single Judge, in accordance with the general legal principle of pacta sunt servanda,
decided to award the instalments due until 30 October 2023 (EGP 60,000) as well as the
payment at the end of the season 2022/2023 (EGP 150,000), along with interest of 5% p.a.
as of the due dates as outstanding remuneration.
29. Furthermore, he stated that the payment due at the end of the season 2023/2024 did not
yet fall due and would be part of the compensation.
30. In the Single Judge’s opinion, the claim for the promotion bonus is not substantiated as
there are no documents on file as to if and when such alleged promotion was reached.
Therefore, he proceeded to reject this part of the claim.
31. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Single
Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
32. In application of the relevant provision, the Single Judge held that it first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
33. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set out
in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
34. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of EGP 720,000 (EGP 80,000 from the instalments, EGP 640,000
as payments due at the end of the seasons) serves as the basis for the determination of
the amount of compensation for breach of contract.
pg. 7
REF. FPSD-12740
35. In continuation, the Single Judge verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the constant
practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration
under a new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
36. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
37. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in
case the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
38. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of EGP 720,000 as the residual value of the contract.
39. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 7 November 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
40. Finally, taking into account 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.
41. In this regard, the Single Judge 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.
42. Therefore, bearing in mind the above, the Single Judge 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.
pg. 8
REF. FPSD-12740
43. 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.
44. 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
45. The Single Judge 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.
46. Likewise, and for the sake of completeness, 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.
47. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-12740
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Innocent Waziri, is partially accepted.
2.
The Respondent, El Mahalla El Kobra SC, must pay to the Claimant the following amount(s):
- Egyptian Pound (EGP) 10,000 as outstanding remuneration plus 5% interest p.a. as
from 1 March 2023 until the date of effective payment;
- Egyptian Pound (EGP) 10,000 as outstanding remuneration plus 5% interest p.a. as
from 1 April 2023 until the date of effective payment;
- Egyptian Pound (EGP) 10,000 as outstanding remuneration plus 5% interest p.a. as
from 1 June 2023 until the date of effective payment;
- Egyptian Pound (EGP) 160,000 as outstanding remuneration plus 5% interest p.a. as
from 1 July 2023 until the date of effective payment;
- Egyptian Pound (EGP) 10,000 as outstanding remuneration plus 5% interest p.a. as
from 1 October 2023 until the date of effective payment;
- Egyptian Pound (EGP) 10,000 as outstanding remuneration plus 5% interest p.a. as
from 1 November 2023 until the date of effective payment;
- Egyptian Pound (EGP) 720,000 as compensation for breach of contract without just
cause plus 5% interest p.a. as from 7 November 2023 until the date of effective payment.
3.
Any further claims of the Claimant 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.
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 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.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 10
REF. FPSD-12740
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
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pg. 11