Dispute Resolution Chamber
Texto da decisão
REF FPSD-1902
Decision of the
Dispute Resolution Chamber
passed on 15 July 2021
regarding an employment-related dispute concerning the player Maroof Yusuf
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Stéphane Burchkalter (France), member
Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
Maroof Yusuf, Nigeria
Represented by Abd Al Rahman Ali
RESPONDENT:
El Zamalek, Egypt
Represented by Nasr Eldin Azzam
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I.
FACTS OF THE CASE
1.
On 26 September 2018, the Nigerian player Maroof Yusuf (hereinafter: the Claimant or the
Player) and the Egyptian club Zamalek (hereinafter: the Respondent or the Club) signed an
employment contract (hereinafter: the Contract) valid for three seasons until the “end of
the 2020/2021 season”.
2.
According to art. 3 of the Contract, the Claimant was entitled to total remuneration of
Egyptian pounds (”EGP”) 19,355,000 payable as follows:
a. First Season: 1000 EGP is payable at the start of the season, over 2 payments instalments
at the rate of 500 EGP
b. Second Season: 9,032,258 EGP payable over 4 payments instalments at the rate of
2,258,064.50 EGP
c. Third Season: 10,322,580 EGP payable over 4 payments instalments at the rate of
2,580,640 EGP; payable as follows:
i. First instalment: 2,580,646 EGP payable at 1 Aug 2020
ii. Second instalment: 2,580,646 EGP payable at 1 Dec 2020
iii. Third instalment: 2,580,646 EGP payable at 1 Apr 2021
iv. Fourth instalment: 2,580,646 EGP payable at 31 July 2021
3.
The Claimant was loaned out to the club Al Shorta (Iraq) for the season 2018/2019 and to
the club Mokawloon Al Masry (Egypt) for the season 2019/2020.
4.
On 2 November 2020, the Claimant sent a notice to the Respondent requesting information
regarding return to training, arranging an appointment at the Embassy and requesting the
Respondent to book flights for him.
5.
On 5 November 2020, the Claimant sent a further communication stating that he will be in
Egypt on the 15 November 2020 and requesting training information.
6.
On 11 November 2020, the Claimant sent a third email requesting confirmation of his status
with the team and requesting payment of outstanding amounts.
7.
On 16 November 2020, the Respondent replied sent an email to the Claimant requesting
him to provide several medical tests results, including PCR covid results.
8.
On 18 November 2020, the Claimant replied to the previous email providing the PCR test,
stating that he was available to undertake any tests with the Club’s medical team and
inquiring about his registration status.
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9.
On 26 November 2020, the Claimant inquired again about his registration status and
requested “the due payments stipulated in my contract”.
10.
On 28 November 2020, the Respondent replied to the previous emails inviting the Claimant
to a meeting at Club premises on the following day.
11.
On 1 December 2020, the Claimant replied arguing some of the Respondent’s statements
and requesting payment of the amounts due.
12.
On the same day, the Respondent sent an email stating that the Claimant had not attended
the proposed meeting and invited him for another meeting on the following day.
13.
On 3 December 2020, the Claimant gave a 45 days’ period to settle the outstanding dues.
14.
On 5 December 2020, the Player signed an employment contract with Egyptian club Al
Bank Ahly FC, according to which he was entitled to receive the amount of EGP 6,243,000
for the season 2020/2021.
15.
On 18 January 2021, the Claimant gave a final 7-days’ deadline to the Respondent to
comply to no avail.
II.
PROCEEDINGS BEFORE FIFA
16.
On 28 February 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
17.
According to the Claimant, the Respondent did not incorporate him for pre-season due to
start on 1 November 2020.
18.
Furthermore, the Claimant alleges that he did not receive the payment for the months of
August and December 2020, in the total amount of EGP 5,161,280.
19.
The Claimant submits that according to the Egyptian Football Association (”EFA”)
regulations, “if a player’s name is not included on the club’s list, and didn’t receive his dues
for more than one month it will be considered a free transfer, and the player contract will
be terminated just cause with a compensation.”
20.
Moreover, the Claimant states that the Respondent did not registered him in the team list
for season 2020/2021, and deliberately did not include him in the team trainings for preseason 2020/2021.
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21.
The Claimant states that the Respondent was notified that a “grace period of 45 days from
the termination of the contract to end the relationship satisfactorily for the two parties and
pay the player’s dues”.
22.
In view of the above-mentioned circumstances, the Claimant considers that “his contract is
terminated for just cause” and made the following requests for relief:
“Claimant Request:
10,322,580 EGP. Corresponding to the last year salary of his contract season 2020/2021
plus 5% interests.
Termination indemnity; as a breach of contract for the non-payment of the player salary,
termination by the club without “just cause”, we claim an indemnity for those nonpayments as well as the “moral damages” and “sporting damages”. We trust the FIFA and
estimators to value the entitlement indemnity”
b.
Position of the Respondent
23.
The Respondent does not dispute that the Claimant terminated the Contract on the 3
December 2020.
24.
However, according to the Respondent, the Claimant had no just cause to terminate the
contract as “no two monthly salaries were outstanding” due to the extension of the
2019/2020 season no remuneration of the next season has come due yet.
25.
The Respondent argues that it had until the 6 December 2020 and not 30 November 2020
to register players and according to the Respondent, this is confirmed by the fact that the
Player himself signed a contract with Al-Bank Ahly Club on 5 December 2020.
26.
The Respondent points to the fact that the term of the Contract “is set seasonally and not
calendar”.
27.
The Respondent states that as the Contract needs to be interpreted in accordance to the
will and intention of the parties, “it's crystal clear that the Parties agreed to the payment of
the Gross 2,580,645 EGP at the beginning of the 2020/2021 season”.
28.
It is further submitted that “as the 2019/2020 season came to end on 31 October 2020
and as the payment of August 2020, December 2020, April 2021, and July 2021 are
mentioned in the third part of the Contract season 2020/2021, it's completely illogical to
claim a payment which is not due yet as all the player notices were sent before the
beginning of the 2020/2021 season on 11 December 2020”
29.
In the Respondent’s view “any salaries requested before the start of the 2020/2021 season
shall be considered unlawful or part of the previous season”.
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30.
Furthermore, the Respondent submits that it had “no obligation to pay the Player any salary
before their due time (i.e the start of the new season) pursuant to FIFA recommendation
issued in June 2020 in regards to COVID-19”.
31.
Thus, the Respondent submits that no just cause can be asserted since, no outstanding
salaries were due and the Player contributed in full by not cooperating with the Club.
32.
The Respondent argues that on 28 November 2020 and while the Claimant was still under
a contractual relationship with the Respondent, it came to the Club's some information that
the Player had started negotiations with some club without its knowledge.
33.
The Respondent further argues that “the Player had already started negotiations way before
the signing of the contract with Al-Bank Ahly club since the sums of money involved are
over 12 million pounds. Not to mention the fact that he refused to attend to meetings
scheduled to settle his position and register him”.
34.
In the Respondent’s view, the FIFA DRC should “take into consideration the breach of the
Player but also it should assert that the Player had a lack of interest and bad faith”. In this
regard, the Respondent pleads that “bad faith from the Player's side can be easily asserted
as he wanted to make use of the COVID-19 situation to mislead FIFA DRC into believing
that his due are not being paid while season 2020/2021 hasn't started yet and while he
was engaged in negotiations with other clubs”.
35.
Based on the above, the Respondent states that the Claimant “has committed several bad
faith breaches and not entitled to compensation”.
36.
The Respondent’s requests for relief are:
“To fully reject the Claimant’s claims.
To decide that the Player in breach of his contract and not entitled to receive any
compensation.
Alternatively, if it deemed that the Player entitled to receive any compensation that should
be in the net amount due to the player after mitigating the new contract signed by the
Player and the due taxes and fees according to the Egyptian Laws, i.e. the player shall not
receive more than net amount of 2 Million EGP as compensation.
To reduce proportionate amount from the player in light of his bad faith from the final
maximum net amount of Player equal to 2 million EGP”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
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37.
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 28 February 2021 and
submitted for decision on 15 July 2021. Taking into account the wording of art. 21 of the
January 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
38.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), 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 Nigerian player and
an Egyptian club.
39.
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 (edition February 2021), and
considering that the present claim was lodged on 28 February 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
40.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
41.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
42.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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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i. Main legal discussion and considerations
43.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that whilst the parties do not dispute that the termination of the
Contract took place, the dispute if this termination was or without just cause.
44.
In this context, the Chamber acknowledged that it its task was to ascertain the nature of
the termination and the consequences arising thereof.
45.
First of all, the members of the Chamber analysed the documentation on file and concluded
that it remained undisputed that the Respondent owed to the Claimant the amount of EGP
5,161,280, amount equal to 2 quarterly payments or 6 monthly salaries.
46.
Furthermore, the Chamber was pointed to the arguments from the Respondent regarding
the outstanding salaries due to the Claimant and the alleged continuation of the season.
The DRC noted the Respondent alleged that as the contract is agreed seasonally, the dates
of payment should not be taken into account and that as the season had not ended yet, no
salaries were due. In this regard, the DRC deemed that that these arguments cannot be
upheld.
47.
The DRC determined that the parties in use of their respective contractual autonomy freely
agreed in the Contract a date in which the Claimant’s salary shall be paid. Furthermore, the
Respondent had not provided any evidence that the payment had been made nor any
convincing evidence for disregarding these dates. In particular, the DRC could observe that
the Respondent had not presented any evidence on any alteration of the payment dates
being proposed, and even less so accepted, to the Claimant. Based on this circumstance,
the members of the Chamber concluded that the Respondent had seriously neglected its
financial obligations towards the Claimant.
48.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, as well as the unequivocal contents of art. 14 of the
Regulations, the Chamber decided that the Claimant had just cause to unilaterally terminate
the Contract on 3 December 2020 and that the Respondent is to be held liable for the early
termination of the contract with just cause by the player.
ii. Consequences
49.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
50.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
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51.
First of all, the members of the Chamber concurred that the Respondent must fulfil its
obligations as per Contract up until the date of termination of the contract in accordance
with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber
decided that the Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination i.e. the amount of EGP 5,161,280.
52.
What is more, as well as based on the absence of specification by the Claimant, the
Chamber decided to also award 5% interest as from the date of claim until the date if
effective payment.
53.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
54.
In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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.
55.
In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a compensation payable by the contractual parties in
the event of breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter
at stake.
56.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of
the contract on 3 December 2020, it would still run until “the end of the 2020/2021
season”, which according to the information available on TMS was due to take place on 26
August 2021.
57.
Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the Contract, as from its early termination until its
regular expiry, amounts to EGP 5,161,292. The DRC confirmed hence that such amount
shall serve as the basis for the final determination of the amount of compensation for
breach of contract.
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58.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant found new
employment and therefore was able to mitigate his damages in line with art. 17 of the
Regulations.
59.
In particular, the Chamber noted that the Claimant found employment with Al Bank Ahli
FC and was able to mitigate his damages in the amount EGP 6,243,000. Consequently, the
Chamber found that the Claimant had been able to fully mitigate his damages.
60.
Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which the Claimant is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the Respondent, and
therefore decided that the Claimant shall receive additional compensation.
61.
In this respect, the DRC highlighted that the player shall be entitled to EGP 2,580,646 as
additional compensation, which corresponds to 3 monthly salaries.
62.
In view of all of the above, the Chamber decided that the Respondent must pay the amount
of EGP 2,580,646 to the Claimant as compensation for breach of contract without just
case, which is considered by the Chamber to be a reasonable and justified amount as
compensation.
63.
Finally, in line with its longstanding jurisprudence in this respect, the Chamber decided to
also award 5% interest p.a. on the compensation as from the date of claim.
iii. Compliance with monetary decisions
64.
Finally, taking into account the aforementioned considerations, the Chamber referred to
par. 1 lit. and 2 of art. 24bis 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.
65.
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.
66.
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
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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.
67.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
68.
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.
d.
Costs
69.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
70.
Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
71.
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, Maroof Yusuf, is partially accepted.
2.
The Respondent, El Zamalek, has to pay to the Claimant, the following amounts:
- EGP 5,161,280 as outstanding remuneration plus 5% interest p.a. as from 1 March 2021 until
the date of effective payment.
- EGP 2,580,645 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 1 March 2021 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 set out in the
enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis/ of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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