F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 10 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 10 February 2020,

by Daan de Jong (the Netherlands), DRC judge,

on the claim presented by the player,

Alaaeldin Nasr Elmaghraby, Egypt

represented by Mr Magdy Abdelghany and Mr Hamza Abdelwahab

as Claimant

against the club,

Trust and Care Sports Club, Maldives

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On an unknown date, the Egyptian player, Alaaeldin Nasr Elsayed Eissa Elmaghraby (hereinafter: the player or the Claimant) and the Maldivian club, Trust and Care Sports Club (hereinafter: the club or the Respondent) (hereinafter jointly referred to as the parties), signed an employment contract (hereinafter: the contract) valid as from 1 June 2019 until “the end of Maldivian football Season 2019”.

2. In accordance with the information available in the Transfer Matching System (TMS), the relevant season started on 7 June 2019 and ended on 1 March 2020.

3. According to article 3 of the contract, the club “shall pay the player a monthly wage amounting to a total of US$ 3200.00 (…), payable in the United States Dollars and the monthly wage for the player will be paid before 15th of the following month”.

4. Moreover, article 4 of the contract read as follows: “the club shall provide the player a monthly food allowance of $300 (Three Hundred US Dollars) payable in the Maldivian Rufiyaa at the prevailing bank rates”.

5. The contract further specified as well the following :

- art. 9 : “The player shall make maximum use of his knowledge, skills and abilities in serving the club as player for its football team or in any other capacity that he is capable of and that the club may require such services from time to time”;

- art. 10: “The player shall always respect and adhere to the policies and decisions of the management of the club. The player shall make maximum effort to maintain the standard of his performance, as a football player to the best of his ability that shall be reflected on and demonstrated by the continuous improvement of the performance of the football team. The player shall co-operate with the management and the club to foster and maintain a closer relationship and a friendly environment among various ranks of club and the football team”.

- art. 11: “If any club other than the club approaches the player for help or with any other proposition in relation to his profession, he shall immediately inform the club of such requests and the player shall not perform any task or provide any assistance to any third party for a fee or otherwise without the written consent of club”.

- art 18: ”All foreign players are brought to the club with the expectation that the player who comes in would be in all aspects better than local players performing in the same position which the foreign player occupies and in general to improve the performance in all facets of the game. If the player is found to be non-performing as expected by the club or does not meet the required standards by the club, the club reserves right to terminate the contract of the player during the term of the contract based on performance and in such an event the club shall do so by giving the player at least 7 days’ advance note in writing. In the event of termination of the players contract, based on the above the player will be paid monthly salary for the ongoing month and the contract will be terminated immediately without any further compensation. If the case is so, the player has to reimburse contract signing fee within 7 days to the club”.

6. By a correspondence dated 15 July 2019, the club terminated the contract stating the following : “This is to confirm that the contract of employment between [the club] and [the player] has terminated on 15th July 2019”.

7. On 10 September 2019, the player put the club in default of payment of the “full value of the employment contract” and granted it 7 days to remedy said default.

8. On 19 September 2019, the player lodged a claim before FIFA against the club for breach of contract, requesting the following:

a. Outstanding remuneration:

i. USD 300 as the food allowance of June 2019, plus 5% interest as from 1 July 2019 until the date of effective payment;

ii. USD 300 as the food allowance of July 2019, plus 5% interest as from 1 August 2019 until the date of effective payment.

b. Compensation for breach of contract:

i. USD 35,000 as compensation for breach of contract, plus 5% interest as from 16 July 2019 until the date of effective payment;

ii. USD 21,000 as additional compensation, plus 5 % interest as from 16 July 2019 until the date of effective payment.

9. In addition, the player further requested USD 2,000 as legal costs and porting sanctions to be imposed on the club for its breach of contract occurred within the protected period.

10. According to the player, the club unilaterally terminated the contract in its letter dated 15 July 2019 “without invoking any particular reason”, and therefore without just cause.

11. Consequently, the player maintained that the Respondent subsequently required from him to sign a termination agreement, which he refused to do.

12. In continuation, the player sustained after he had acknowledged a partial payment of USD 6,400 in August 2019, corresponding to the salaries of June and July 2019, he put the Respondent in default of payment with his correspondence dated 10 September 2019 of the “full value of the employment contract” and granted it 7 days to remedy said default, however to no avail.

13. In its reply to the claim, the club firstly held that it replied to the player’s default with its correspondence of 17 September 2019 explaining that the parties orally agreed to the termination of the contract in accordance with clauses 9,10,11 and 18 of the contract, that it provided payment receipts and asserted that it will provide his outstanding dues within 2 months reserving, as well, its rights to claim against the player due to his breaches of the aforementioned clauses.

14. In continuation, the club further held that due to the player’s alleged misconduct as to negotiations with another club, as well as to damages he caused to the apartment provided to him, it had the right to terminate the contract.

15. Within the above in mind, the club sustained as well that it paid USD 8,130 and that it still owed USD 587, however without having been able to perform said payment due to the player’s failed provision of his bank details.

16. As a consequence, the club held that it duly terminated the contract as per the aforementioned clauses, that it had paid what was owed, recognizing however a debt amounting to USD 587 unpaid due to the player’s fault and, as a consequence, it rejected the player’s requests entirely.

17. Finally, upon FIFA’s request, the player explained that he did not sign any contract with a new club after Termination as he went to Bangladesh to play as an amateur.

II. Considerations of the Dispute Resolution Chamber judge

1. First of all, the Dispute Resolution Chamber judge (hereinafter referred as DRC judge) analysed whether it was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 19 September 2019. Consequently, the DRC judge concluded that the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2020), he 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 Maldivian club.

3. Furthermore, the DRC 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 Player (editions 2020), and considering that the present claim was lodged on 19 September 2019, the June 2019 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, he entered into the substance of the matter. In this respect, he started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. Having said this, the DRC judge proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. First of all, the DRC judge acknowledged that the parties signed an employment contract valid as from 1 June 2019 until “the end of Maldivian football Season 2019”, i.e. 1 March 2020.

7. The DRC judge further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the total amount of USD 58,600, asserting that the Respondent had not fulfilled its contractual obligations towards him. More specifically, the Claimant indicated that the Respondent had terminated the contractual relationship on 15 July 2019 without invoking any particular reason, followed by an attempt to sign a termination agreement. In the Claimant’s opinion and despite his default notice by means of which he requested to be paid his outstanding dues, the Respondent did not react accordingly.

8. In continuation, the DRC judge observed that the Respondent firstly insisted on the fact that the parties had orally agreed to the termination of the contract in accordance with clauses 9,10,11 and 18 of the contract. In addition, the DRC judge took note as well that he Respondent deemed that it had paid what was due to the Claimant and that only USD 587 were still outstanding due to the Claimant’s fault. Finally, the DRC judge underlined that the Respondent held that the Claimant was responsible of several breaches, among which negotiations held with another club as well as to damages he caused to the apartment provided to him, such reasons justifying as well the termination.

9. In this context, the DRC judge acknowledged that he had to examine whether the reasons put forward by the Respondent could justify the termination of the contract in the present matter.

10. In this respect, the DRC judge firstly took note that the reasons invoked by the Respondent in order to justify the termination of the contract had occurred with just cause have not been communicated to the Claimant in the termination letter.

11. In addition and referring to the arguments put forward by the Respondent, the DRC judge explained that art. 18 of the contract, on which the Respondent relies on, among others, to justify the termination, appears to be a performance clause.

12. In In this context, the DRC judge focussed his attention on the said art. 18 of the contract, which reads as follows: ”All foreign players are brought to the club with the expectation that the player who comes in would be in all aspects better than local players performing in the same position which the foreign player occupies and in general to improve the performance in all facets of the game. If the player is found to be non-performing as expected by the club or does not meet the required standards by the club, the club reserves right to terminate the contract of the player during the term of the contract based on performance and in such an event the club shall do so by giving the player at least 7 days’ advance note in writing. In the event of termination of the players contract, based on the above the player will be paid monthly salary for the ongoing month and the contract will be terminated immediately without any further compensation. If the case is so, the player has to reimburse contract signing fee within 7 days to the club”.

13. In this regard, the DRC judge took into account that such clause appears to be unilateral and to the benefit of the Respondent only. What is more, the decision on judging the player’s performance is normally left fully to the discretion of the club. In the light of such character of the pertinent contractual clause, the DRC judge concluded that art. 18 of the contract is not acceptable.

14. Therefore, the DRC judge concurred that the said art. 18 of the contract does not constitute a reason that can be validly invoked nor a legal basis to unilaterally terminate the contract. Consequently, the DRC judge rejected the Respondent’s argument in this respect and, subsequently, came to the conclusion that by means of justifying its action by using such clause, the club implicitly acknowledged that it was terminating the contract without just cause.

15. Moreover, the DRC judge also took note of the other reasons put forward by the Respondent to justify the termination and to consider, eventually, to claim against the Claimant due to his alleged misconduct as to negotiations with another club as well as to damages he caused to the apartment provided to him. In this respect, the DRC judge deemed that due to the lack of evidence on said issues, the poor wording of the Respondent’s reply to the claim as well as the absence of any quantified damage, said issues had to be disregarded.

16. Therefore, on account of the above, the DRC judge decided that the Respondent had no just cause to unilaterally terminate the employment relationship between the Claimant and the Respondent and, therefore, concluded that the Respondent had terminated the employment contract without just cause on 15 July 2019 and that,

consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause.

17. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent.

18. First of all, the DRC judge concurred that the Respondent must fulfill its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”.

19. In this respect, the DRC judge took note of the evidence provided by the Respondent by means of which it had allegedly provided evidence as to the payment of the claimed food allowances amounting to USD 300 each for June and July 2019. However, the DRC judge observed the provided evidence and that one payment receipt was not signed by the Claimant and the other payment slip did not refer to said allowances. In addition, he took note as well that no conclusive evidence had neither been provided as to any justification to any deductions made due to costs incurred by the Respondent and imputable to the Claimant.

20. Consequently, the Respondent having provided inconclusive evidence as to the payment of the claimed food allowances amounting to USD 300 each for June and July 2019, the DRC judge decided that the Respondent is liable to pay to the player the remuneration that was outstanding at the time of the termination considering that no salary deduction had been substantiated, i.e. the amount of USD 600, as a consequence of the termination without just cause on 15 July 2019.

21. Furthermore, considering the player’s claim for interest and also taking into account the DRC judge’s longstanding jurisprudence, he ruled that the club must pay 5% interest p.a. on the amount of USD 600, as from the due dates until the date of effective payment, as follows:

i. as from 1 July 2019 on the amount of USD 300;

ii. as from 1 August 2019 on the amount of USD 300.

22. Having established that the Respondent is to be held liable for the early termination of the employment contract without just cause, the DRC judge focused his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant would, in principle, be entitled to receive from the Respondent an amount of money as compensation for breach of contract.

23. In continuation, the DRC judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC 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 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.

24. In application of the relevant provision, the DRC judge held that he first of all had to clarify as to whether the pertinent employment contract contains 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

25. As a consequence, the DRC judge determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the DRC judge emphasised beforehand that each request for compensation for contractual breach has to be assessed by the DRC judge on a case-by-case basis taking into account all specific circumstances of the respective matter.

26. The DRC judge then turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The DRC judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC judge to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

27. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from the date of termination with just cause by the Claimant until its natural expiration, bearing in mind that he would have received in total USD 24,500 as remuneration for the period as from August 2019 until March 2020. Consequently, the DRC judge concluded that the amount of USD 24,500 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

28. In continuation, the DRC judge verified as to whether the Claimant 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 judge, 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.

29. In this respect, the DRC judge recalled that, after termination, the Claimant did not sign any contract with a new club as he went to Bangladesh to play as an amateur.

30. In addition, taking into account the Claimant’s request and the DRC judge’s well-established jurisprudence, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD 24,500 as of the date on which the claim was lodged, i.e. 19 September 2019, until the date of effective payment.

31. At this point, the DRC judge recalled the Claimant’s request to be awarded additional compensation and decided to reject said request, the conditions of art. 17 par. 1 ii) of the Regulations being not met.

32. Moreover, in accordance with his practice, the DRC judge rejected the Claimant’s request as to the reimbursement of his legal fees as well as his request of sanctions to be imposed on the Respondent.

33. The DRC judge concluded his analysis by establishing that the Claimant’s claim is partially accepted and by rejecting any further claim of the Claimant.

34. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to par. 1 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.

35. In this regard, the DRC judge established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the Respondent. More in particular, the DRC judge pointed out that, against clubs, the sanction shall consist in a ban from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods.

36. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amount due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

37. Finally, the DRC judge recalled that the above-mentioned sanction will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

III. Decision of the Dispute Resolution Chamber judge

1. The claim of the Claimant, Alaaeldin Nasr Elmaghraby, is partially accepted.

2. The Respondent, Trust and Care Sports Club, has to pay to the Claimant outstanding remuneration in the amount of USD 600, plus interest at the rate of 5% p.a. until the date of effective payment, as follows :

iii. as from 1 July 2019 on the amount of USD 300;

iv. as from 1 August 2019 on the amount of USD 300.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of USD 24,500, plus interest at the rate of 5% p.a. until the date of effective payment as from 19 September 2019.

4. Any further claim lodged by the Claimant is rejected.

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail addresses as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts plus interest mentioned under point 2 and 3 above.

6. The Respondent shall provide evidence of payment of the due amounts plus interest in accordance with point 2 and 3 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due plus interest in accordance with point 2 and 3 above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts plus interest are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The ban mentioned in point 7 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sums plus interest are still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS.

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber judge:

Emilio García Silvero

Chief Legal & Compliance Officer