F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2019-2020) – fifa.com – atto non ufficiale – Decision 15 April 2020

Decision of the Single Judge

of the Players’ Status Committee

passed on 15 April 2020,

by

Johan van Gaalen (South Africa)

Single Judge of the Players’ Status Committee,

on the claim presented by the club

Al Ahly SC, Egypt

as Claimant

against the club

Al Ahli, Saudi Arabia as Respondent

regarding a contractual dispute between the parties

relating to the player Abdallah Mahmoud Saeed Bekhit

I. Facts of the case

1. On 27 May 2018, the Egyptian club Al Ahly SC (hereinafter: the Claimant) concluded a transfer agreement (hereinafter: the agreement) with the Saudi club (hereinafter: the Respondent) in relation to the transfer of the player Abdallah Mahmoud Saeed Bekhit (hereinafter: the player) to the latter club by means of which the Respondent had to pay to the Claimant a transfer fee of USD 1,000,000.

2. In addition, the parties agreed on the condition that “the Player may not be resold or borrowed to any other club inside the Arab Republic of Egypt under any circumstances for three football seasons as from signing this contract.”

3. Moreover, in case of a violation of the transfer agreement, the parties agreed upon a penalty clause of USD 2,000,000.

4. According to the Claimant, on 4 January 2019, the player was registered with Pyramids FC, a club from Egypt.

5. The Claimant further maintained that the Respondent breached the agreement by not complying with the condition and should therefore pay the penalty clause as established in the agreement, i.e. USD 2,000,000.

6. On 13 May 2019, the Claimant lodged a claim with FIFA against the Respondent and requested from the latter the payment of USD 2,000,000 as penalty fee in accordance with transfer agreement.

7. In its response, the Respondent claimed that the employment contract with the player was mutually terminated amicably on 2 January 2019. A settlement was also signed between the Respondent and the player, through which the latter acknowledged not having any claims against it.

8. In view of the above, the Respondent denied having sold the player to another club in Egypt and consequently also having breached the agreement with the Claimant.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed which Procedural Rules were applicable to the matter at hand. In this respect, he referred to the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 13 May 2019 and decided on 15 April 2020. Therefore, the Single Judge concluded that the 2019 edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players is applicable as to the substance of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the March 2020 edition of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged in front of FIFA on 19 May 2019. In view of the foregoing, the Single Judge concluded that the June 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the substance.

3. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 and par. 2 of the Procedural Rules in connection with art. 23 par. 1 and par. 4 as well as art. 22 lit. f) of the Regulations, he was competent to deal with the present matter since it concerned a dispute between two clubs affiliated to two different associations.

4. The competence of the Single Judge and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. The Single Judge emphasised, however, 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. First of all, the Single Judge acknowledged that it was undisputed between the parties that a transfer agreement was concluded between the Claimant and the Respondent, stipulating a transfer fee USD 1,000,000.

6. Equally, the Single Judge observed that pursuant to the agreement, the parties agreed that “the Player may not be resold or borrowed to any other club inside the Arab Republic of Egypt under any circumstances for three football seasons as from signing this contract.”, and that in case a party would breach the agreement, a penalty fee of USD 2,000,000 had to be paid by the latter.

7. Having established the above, the Single Judge further noted that the Claimant argued that, since the player on 4 January 2019 was registered with the Egyptian club Pyramids FC, the Respondent should therefore pay the penalty fee of USD 2,000,000 as established in the agreement.

8. Furthermore, the Single Judge took note that, in its reply, the Respondent held that the player was not “resold of borrowed” to another club in Egypt, since the Respondent and the player had mutually terminated their employment relationship and the player was later on engaged out of contract by Pyramids FC. Therefore, the Respondent deems not to have violated the prohibition of selling or borrowing the player to a third club in Egypt.

9. On account of the diverging positions of the parties, the Single Judge deemed it appropriate to analyse the wording of the relevant contractual clause at the basis of the dispute, and emphasised the following terms: “As agreed upon by the First [the Claimant] and the second party [the Respondent], if the Player is resold or borrowed to any other club inside the Arab republic of Egypt, the First party [the Claimant] shall have 20% of the value of the resale or the borrowing that shall be paid by the Second Party [the Respondent] upon concluding the mentioning acting.” (emphasis added)

10. The Single Judge acknowledged the arguments of both parties in respect of the aforementioned clause and noted that in accordance with the information contained in the Transfer Matching System (TMS), the player was engaged by the new Egyptian club, Pyramids FC, on 4 January 2019, “out of contract / free of payment”. This information is in line with the argumentation put forth by the Respondent and therefore the Single Judge concluded that no breach of the non-competition clause existed on the part of the Respondent, since the player was neither transferred nor loaned to a third party in Egypt.

11. In conclusion, the Single Judge decided to follow the argumentation of the Respondent and reject the claim of the Claimant.

12. Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before the Players’ Status Committee including its Single Judge, costs in the maximum amount of CHF 25’000 are levied. The relevant provision further states that the costs are to be borne in consideration of the parties’ degree of success in the proceedings (cf. art. 18 par. 1 of the Procedural Rules).

13. In respect of the above, and taking into account that the claim of the Claimant is entirely rejected, the Single Judge decide that the costs of the proceedings are to be borne by the Respondent.

14. Furthermore and according to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is USD 2,000,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

15. In conclusion and considering the specific circumstances of the case, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000, to be paid by the Respondent.

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II. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Al Ahly SC, is rejected.

2. The final costs of the proceedings in the amount of CHF 20,000 are to be borne by the Claimant. In view of the fact that the Claimant already paid the amount of CHF 5,000 as advance of costs, the Claimant should pay procedural costs in the amount of CHF 15,000 to FIFA to the following bank account with reference to case nr. 19-02213/lsk.

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

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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 Single Judge of the

Players’ Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer