F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – overdue payables / debiti scaduti – (2020-2021) – fifa.com – atto non ufficiale – Decision 6 October 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 6 October 2020,

regarding a dispute concerning the transfer of the player Mohamed Ibrahim Abouelyazid Elshenawy

BY:

Geoff Thompson (England), Single Judge of the PSC

CLAIMANT:

MARÍTIMO DA MADEIRA, Portugal

Represented by Mr. Gonçalo Almeida

RESPONDENT:

ZAMALEK SC, Egypt

I. FACTS OF THE CASE

1. On 29 January 2015, the Portuguese club, Marítimo de Madeira (hereinafter: the Claimant) and the Egyptian club, Zamalek SC (hereinafter: the Respondent) concluded a transfer agreement (hereinafter: the agreement) for the definitive transfer of the player Mohamed Ibrahim Abouelyazid Elshenawy (hereinafter: the player) from the Claimant to the Respondent.

2. According to art. 2 of the agreement, the parties agreed upon a transfer fee of EUR 500,000, payable as follows:

A. EUR 50,000 gross, on 1 March 2015;

B. EUR 50,000 gross, on 1 May 2015;

C. EUR 100,000 gross, on 1 November 2015;

D. EUR 150,000 gross, on 1 March 2016;

E. EUR 150,000 gross, on 1 October 2016.

3. According to art. 2.1 of the agreement, “After each expiration date, ZAMALEK will have an additional period of 15 days and after that will enter into definitive failure”.

4. Art. 2.2 of the agreement set out a sell-on fee in the event of a future transfer of the player, as follows:

“In addition to the transfer fee, mentioned in point 1, in the event that ZAMALEK sells/transfers the player to a third club, either on definitive or temporary basis, MARÍTIMO will be entitle to received the amount corresponding to 40% (forty percent), of any and all transfer fees, in the minimum amount of 1.000.000,00€ (one million Euros), received by ZAMALEK from any third club or party.

In the event that the player is transferred on a definitive basis for free, ZAMALEK is nevertheless liable to pay to MARÍTIMO, the extra fixed amount of 1.000.00,00€ (one million Euros).”

5. Moreover, according to art. 2.3 of the agreement, if the respondent fails to pay any of the instalments “all amounts due from that date on shall become immediately receivable and shall be immediately paid to MARITIMO, increased by a penalty of 100% (one hundred percent), thereby totalizing 1.000.000€ (one million Euros), which the parties hereby accept as being fair and proportional due to the urgency and relevance of the present agreement (…)”.

6. On 18 June 2020, the claimant requested the payment of EUR 1,000,000 as per art. 2.2 of the agreement following the transfer of the player from the respondent to a third club in July 2019. The claimant granted the respondent until 3 July 2020 to make said payment.

7. In his claim, the claimant referred to art. 2.2 of the agreement whereby it is entitled to receive 40% of any future transfer fee and the minimum amount of EUR 1,000,000.

8. The claimant held that on 31 July 2019, the respondent transferred the player to the Egyptian club Masr El Makasa in exchange of a transfer fee of EUR 300,000. The claimant then argued that 40% of said amount results in the amount of EUR 120,000 which is way less than the agreed minimum amount of EUR 1,000,000.

9. The claimant therefore argued that the condition set out in art. 2.2 of the agreement was fulfilled and that the Respondent must pay the amount agreed upon between the parties.

10. In view of the above, the Claimant requested outstanding remuneration in the amount of EUR 1,000,000 plus 5% interest p.a. as from 31 July 2019.

11. Moreover, the Claimant considered that the claim fulfils the criteria of art. 12bis and therefore requested that the appropriate sanctions be imposed upon the respondent.

12. Despite having invited to do so, no correspondence has been received from the club, Zamalek SC, in response to the claim.

13. Upon request from FIFA, the Egyptian Football Association (EFA) confirmed that the player was registered with its affiliated club, Masr El Makasa.

II. CONSIDERATIONS OF THE PLAYERS' STATUS COMMITTEE

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: Single Judge) analysed whether he was competent to deal with the present matter. In this respect, he took note that the present matter was submitted to FIFA on 20 July 2020. Taking into account the wording of art. 21 of the June 2020 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.

2. Subsequently, the Single Judge referred to art. 3 paras 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 23 paras 1 and 4 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition October 2020) he is competent to deal with the matter at stake, which concerns a contractual dispute between clubs affiliated to different associations.

3. Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of Players (edition October 2020), and considering that the present claim was lodged on 20 July 2020, the June 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. 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 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 the parties, on 25 July 2019, concluded a transfer agreement for the player from the Claimant to the Respondent, upon a transfer fee of EUR 500,000 and including the following provision as art. 2.2: “(…) in the event that ZAMALEK sells/transfers the player to a third club, either on definitive or temporary basis, MARÍTIMO will be entitle to received the amount corresponding to 40% (forty percent), of any and all transfer fees, in the minimum amount of 1.000.000,00€ (one million Euros), received by ZAMALEK from any third club or party.

In the event that the player is transferred on a definitive basis for free, ZAMALEK is nevertheless liable to pay to MARÍTIMO, the extra fixed amount of 1.000.00,00€ (one million Euros).”

And, as per art. 2.3 of the agreement, if the respondent fails to pay any of the instalments “all amounts due from that date on shall become immediately receivable and shall be immediately paid to MARITIMO, increased by a penalty of 100% (one hundred percent), thereby totalizing 1.000.000€ (one million Euros), which the parties hereby accept as being fair and proportional due to the urgency and relevance of the present agreement (…)”.

6. Subsequently, the Single Judge noted that the Claimant understood that art. 2.2 of the agreement was triggered when the player was transferred, on 31 July 2019, from the Respondent to the Egyptian club Masr El Makasa for a total amount of EUR 300,000. Thus, the Claimant deemed to be entitled to the total amount of EUR 1,000,000 as per art. 2.2 of the agreement, as well as 5% interest p.a. on the aforementioned amount as from 31 July 2019.

7. In this context, the Single Judge took particular note of the fact that, on 18 June 2020, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a 15 days’ time limit in order to remedy the default.

8. Consequently, the Single Judge concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligation(s).

9. The Single Judge further noted that despite having been invited to do so, the Respondent did not submit an answer to the claim. By not presenting its position to the claim, the Single Judge was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

10. Furthermore, as a consequence of the aforementioned consideration, the Single Judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

11. Having established the above, the Single Judge established that the main issue to be solved in the present case was to determine whether the conditions of art 2.2 of the agreement had actually been triggered. In this regard, the Single Judge recalled that it was uncontested that the player had been definitively transferred from the Respondent to the third club, i.e. Masr El Makasa.

12. As to consequence, the Single Judge deemed that the scenario provided in article 2.2 of the transfer agreement had effectively occurred and therefore, the Claimant “(…) will be entitled to received the amount corresponding to 40% (forty percent), of any and all transfer fees, in the minimum amount of 1.000.000,00€ (one million Euros), received by ZAMALEK from any third club or party. (…)”

13. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit to the Claimant the amount of EUR 1,000,000, in accordance with the agreement.

14. In addition, bearing in mind the considerations under numbers II./7. and II./8. above the Single Judge established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

15. Consequently, the Single Judge decided that the Claimant’s claim was accepted and, therefore, in accordance with the general legal principle of pacta sunt servanda, it was entitled to the sell-on fee in accordance with the mechanism provided in article 2.2 of the transfer agreement. As such, the Single Judge deemed that the Respondent was liable to pay to the Claimant the amount of EUR 1,000,000.

16. In addition, as to the payable interest, the Single Judge noted the transfer agreement did not regulate any default interest for the payment of the sell-on fee. Consequently, in line with its longstanding jurisprudence in this respect, the Single Judge decided to award 5% interest p.a. over said amount as from 31 July 2019, as requested by the Claimant.

17. In continuation, taking into account the consideration under number II./14. above, the Single Judge referred to art.12bis par. 2 of the Regulations which stipulates that any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.

18. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Therefore, and in the absence of the circumstance of repeated offence, the Single judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

19. Furthermore, taking into account the consideration under number II./3. above, the Single 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.

20. In this regard, the Single Judge pointed out 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 and for the maximum duration of three entire and consecutive registration periods.

21. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the Respondent does not pay the amounts 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.

22. Moreover, 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. 24bis par. 3 of the Regulations.

23. Finally, the Single Judge referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 that, given the current circumstances, for any claim lodged prior to 10 June 2020 which has yet to be decided, the maximum amount of the procedural costs shall be equivalent to any advance of costs paid. Thus, considering that no advance of costs were paid, the Single Judge established that the decision is rendered free of costs.

III. DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, MARÍTIMO DA MADEIRA, is accepted.

2. The Respondent, ZAMALEK SC, has to pay to the Claimant the following amount:

- EUR 1,000,000 as outstanding remuneration plus 5% interest p.a. as from 31 July 2019 until the date of effective payment.

3. A warning is imposed on the Respondent.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

The Respondent shall be banned 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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.

7. The decision is rendered free of costs.

For the Players' Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer

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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