F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 24 November 2020

Decision of the

Dispute Resolution Chamber

passed on 24 November 2020,

regarding an employment-related dispute concerning the player Shiza Yahya

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman Roy Vermeer (Netherlands), member Jose Luis Andrade (Portugal), member

CLAIMANT:

Pharco Football Club, Egypt

Represented by Mr Nehad Mossad Ibrahim Hagag

RESPONDENT 1:

Mr Shiza Yahya, Tanzania

Represented by Mr Juan de Dios Crespo Pérez

RESPONDENT 2:

Simba SC, Tanzania

Represented by Mr Juan de Dios Crespo Pérez

I. FACTS OF THE CASE

1. On 29 January 2019, the Egyptian club, Pharco Football Club, (hereinafter: the Claimant or Pharco FC), and the Tanzanian club, Simba SC, (hereinafter: the Respondent 2 or Simba SC) signed a transfer agreement (hereinafter: the agreement) whereby the latter agreed to transfer the Tanzanian player, Mr Shiza Yahya (hereinafter: the Respondent 1 or Player) to the claimant against the payment of USD 85,000.

2. On 30 January 2019, the claimant and the player concluded an employment contract (hereinafter: the contract), valid as from the beginning of the 2018/2019 season until the end of the 2022/2023 season.

3. Pursuant to art. 2 of the contract, the Claimant undertook to pay the player the following remuneration:

 EGP 80,000 for the season 2018/2019, payable in 4 instalments;

 EGP 100,000 for the season 2019/2020, payable in 12 instalments;

 EGP 120,000 for the season 2020/2021, payable in 12 instalments;

 EGP 140,000 for the season 2021/2022, payable in 12 instalments;

 EGP 160,000 for the season 2022/2023, payable in 12 instalments.

4. According to the information contained in the Transfer Matching System (TMS), the Egyptian FA, on 26 January 2020, delivered the ITC for the player Shiza Yahya and then, 4 minutes later, requested the cancellation of the ITC stating that the player was still under contract with his former club, Pharco FC. The FIFA’s TMS team intervened in the transfer and requested the Egyptian FA to provide a copy of the player’s contract and/or any other proof that the player was still under contract with Pharco FC. Despite several reminders, the Egyptian FA failed to comply. As a result, the transfer cancellation request was rejected, which meant that the Tanzanian FA was able to confirm receipt of the ITC and to register the player on 4 February 2020.

5. The Claimant argued that the player and Simba SC breached art. 17 of the Regulations as they concluded an employment contract whilst the player was still under contract with the Claimant.

6. On 29 April 2020, the Claimant lodged a claim against the player and Simba SC in front of FIFA, claiming the total amount of USD 500,000 “as compensation for the unilateral termination without a legitimate reason with a 5% delay fine from the date of the decision”, as well as the imposition of sporting sanctions on the Respondents.

7. As part of its claim, the claimant submitted pictures of the player allegedly signing his employment contract with Simba SC and publications of Simba SC announcing the player as being a member of the team, as well as the starting eleven in certain matches, whereby the player is listed.

8. Despite having invited to do so, the Respondent 1, Mr Shiza Yahya, and the Respondent 2, Simba SC, did not provide an answer to the claim.

9. According to the information contained in the TMS, on 20 January 2020, the player and Simba SC concluded an employment contract valid as from the date of signature until 30 June 2020, by means of which Simba SC undertook to pay the player a monthly salary of USD 2,000 plus a signing fee of USD 10,000 as well as a commission fee of USD 5,000.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. 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 submitted to FIFA on 29 April 2020. Taking into account 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), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed 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 October 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake. The matter concerns an employment-related dispute with an international dimension between an Egyptian club, a Tanzanian player and a Tanzanian club, and the competence is not disputed by the parties.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (October 2020 edition), and considering that the claim was lodged on 29 April 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC 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 that, the Chamber acknowledged that, on 29 January 2019, the Claimant and the Respondent 2 signed a transfer agreement, according to which Simba SC transferred the player to the Claimant against the payment of USD 85,000.

6. In this respect, Chamber further acknowledged that, on 30 January 2019, the Claimant and the Respondent 1 signed an employment agreement by means of which the Claimant offered the player a 4 seasons contract, starting from the beginning of the 2018/2019 season until the end of the 2022/2023 season, according to which the Respondent 1 was entitled to the following remuneration:

 EGP 80,000 for the season 2018/2019, payable in 4 instalments;

 EGP 100,000 for the season 2019/2020, payable in 12 instalments;

 EGP 120,000 for the season 2020/2021, payable in 12 instalments;

 EGP 140,000 for the season 2021/2022, payable in 12 instalments;

 EGP 160,000 for the season 2022/2023, payable in 12 instalments.

7. Moreover, the Chamber took note that, according to the Claimant, the player and Simba SC breached art. 17 of the Regulations as they concluded an employment contract whilst the player was still under contract with the Claimant.

8. In this regard, the DRC noted that according to the information contained in the TMS, on 20 January 2020, the Respondent 1 and the Respondent 2 concluded an employment contract valid as from the date of signature until 30 June 2020, by means of which the Respondent 2 undertook to pay the player a monthly salary of USD 2,000 plus a signing fee of USD 10,000 as well as a commission fee of USD 5,000.

9. Having recalled the above, the DRC judge observed that, the Claimant, in his claim, requested compensation for breach of contract in the total amount of USD 500,000 plus 5% interest p.a. as of the date of the decision as well as the imposition of sporting sanctions on the Respondents.

10. The DRC judge further noted that despite having been invited to do so, the Respondent 1 and the Respondent 2 did not submit an answer to the claim. By not presenting their position to the claim, the DRC was of the opinion that the Respondents renounced their right of defence and, thus, accepted the allegations of the Claimant.

11. Furthermore, as a consequence of the aforementioned consideration, the Chamber 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.

12. With the above in mind, the DRC considered that it had remained uncontested that while the player was under contract with the Claimant, in January 2020, he left the Claimant and went to Simba SC.

13. Taking all of the above into account, the Chamber held that the player had failed to prove that Pharco FC authorised him to leave the club and subsequently sign an employment contract with a new club. As a consequence thereof, the Chamber concluded that the player had breached the employment contract without just cause in January 2020, by leaving the Claimant. What is more, the Chamber deemed that the player did not provide any valid reason which could justify the termination of the contract.

14. On account of the above, the DRC was of the view that the player unilaterally terminated the contract without any valid reason and, consequently, is to be held liable for the early termination of the employment contract without just cause.

15. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences of the early termination of the employment contract without just cause by the player.

16. As a consequence of the aforementioned conclusion, the DRC established that, in accordance with art. 17 par. 1 of the Regulations, the player is liable to pay compensation to the Claimant. Furthermore, in accordance with the unambiguous contents of art. 17 par. 2 of the Regulations, the Chamber established that the new club, i.e. Simba SC, shall be jointly and severally liable for the payment of such compensation. In this respect, the Chamber was nonetheless eager to point out that the joint liability of the new club is independent from the question as to whether the new club has induced the contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber and has been repeatedly confirmed by the CAS.

17. Notwithstanding the aforementioned, the Chamber recalled that according to art. 17 par. 4 sent. 2 of the Regulations, it shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his contract without just cause has induced that professional to commit a breach.

18. In this context, the Chamber focused on the primacy of the principle of the maintenance of contractual stability, which represents a central element of the Regulations.

19. Above all, the Chamber was eager to point out that the measures provided for by the above Regulations concerning in particular compensation for breach of contract without just cause serve as a deterrent aimed at discouraging the early termination of employment contracts by either contractual party and that a lack of a firm response by the competent deciding authorities would represent an inappropriate example towards all the football actors.

20. In this respect, awarding compensation in favor of the damaged party has proven to be an efficient means and has always found a widespread acceptance since it guarantees that the fundamental principle of the respect of the contracts is duly accounted for.

21. Moreover, it was emphasized that the criteria contained in art. 17 of the Regulations are applied with the principle of reciprocity for clubs and players, signifying that clubs and professional players who are seen to have committed a breach of contract without just cause will in all cases be subject to pay compensation and, under specific circumstances, also be subject to the imposition of sporting sanctions.

22. Having stated the above, the Chamber focussed its attention to the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly pointed out 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(s), the time remaining on the existing contract up to a maximum of five years as well as the fees and other expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period. The DRC recalled that the list of objective criteria is not exhaustive and that the broad scope of criteria indicated tends to ensure that a just and fair amount of compensation is awarded to the prejudiced party.

23. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable 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.

24. As a consequence, the members of the Chamber determined that the amount of compensation payable in the case at stake had to be assessed in application of art. 17 par. 1 of the Regulations. The Chamber 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 Dispute Resolution Chamber stated beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter.

25. According to the documentation provided by the Claimant, it appears that in accordance with the player’s employment contract with Pharco FC, its remaining value would be equal to EGP 466,666.66, approx. USD 29,000 (corresponding to the months as of February 2020 until May 2020 plus seasons 2020/2021, 2021/2022 and 2022/2023 = 40 months).

26. On the other hand, the value of the new employment contract, concluded between the player and Simba SC, which was apparently in force until 30 June 2020, had a total value of USD 27,000 (2,000*6, plus 10,000 plus 5,000).

27. Accordingly, under the aforementioned employment contracts with said clubs, the player was to receive the approximate average income of USD 62,000, i.e. USD 29,000 + USD 95,000 (USD 2,000*40 months + 15,000) / 2).

28. In view of all of the above, the Chamber concluded that bearing in mind art. 17 par. 1 of the Regulations, after having duly taken into account the specificities of the present case, the compensation considering the player’s both existing contract and any new contract amounts to USD 62,000, which is the average between the amounts the player is entitled to both under the contract with the Claimant and new employment agreement with Simba SC, a sum the Chamber found to be fair and proportionate. For the sake of completeness, the Chamber wished to clarify that in order to properly calculate the aforementioned average it was necessary to consider the amounts due to the player under the Simba SC’ employment agreement for the same period of time remaining in the contract with the Claimant. In other words, the DRC clarified that in order to properly calculate the average of the amounts due to the player under both the former and the new contract, it had to (fictionally) match the period of the Simba SC’ agreement to match the original term of the contract with Pharco FC

29. The members of the Chamber then turned to the criterion relating to the fees and expenses paid or incurred by the Claimant accordance with art. 17 par. 1 of the Regulations. The Chamber recalled that the Claimant argued that a transfer compensation of USD 85,000 had been paid by Pharco FC to Simba SC, documentation of which has been presented by the Claimant and was confirmed by the information available in the TMS.

30. The Chamber deemed that the unamortized transfer fee incurred by the Claimant fits into the description of article 17 par. 1 of the Regulations referring to the fees and expenses paid or incurred by the former club (amortised over the term of the contract), and therefore could be considered as part of the compensation to be granted. Said unamortized transfer fee corresponds to USD 65,000, i.e. 40 months remaining out of the total originally agreed under the contract.

31. Therefore, the DRC found that the amount of USD 65,000 was to be taken in consideration as expenses incurred by the Claimant in accordance with art. 17 par. 1 of the Regulations in the calculation of the relevant compensation to be paid to the Claimant.

32. On account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the player must pay the amount of USD 127,000 (i.e. USD 62,000 plus USD 65,000) to Pharco FC as compensation for breach of contract without just cause. Furthermore, Simba SC is jointly and severally liable for the payment of the relevant compensation.

33. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the player and Simba SC must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date of the decision until the date of effective payment.

34. Subsequently, taking into account the previous considerations, the Chamber 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 Chamber 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. Against players, the consequence of the failure to pay the relevant amounts in due time shall consist of a restriction on playing in official matches up until the due amounts are paid. The overall maximum duration of the aforementioned restriction, including possible sporting sanctions, shall be of six months on playing in official matches.

36. Bearing in mind the above, the Chamber decided that, in the event that the player and Simba SC do not pay the amounts due to Pharco FC 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 player and Simba FC, 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 Simba SC and a restriction on playing in official matches up to a maximum of six months shall be effective on the player, in accordance with art. 24bis par. 2 and 4 of the Regulations.

37. The DRC recalled that the above-mentioned bans 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.

38. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

39. In conclusion, the DRC decided to partially accept the Claimant’s claim.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Pharco Football Club, is partially accepted.

2. The Respondent 1, Mr Shiza Yahya, has to pay to the Claimant, the following amount:

1. USD 127,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 24 November 2020 until the date of effective payment.

3. The Respondent 2, Simba SC, is jointly and severally liable for the payment to the Claimant of the amount mentioned in point 2. above.

4. Any further claims of the Claimant are rejected.

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

6. The Respondents 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).

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

 1.

The Respondent 1 shall be restricted from playing in official matches up until the due amount is paid, and for the maximum duration of six months.

The Respondent 2 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 bans will be lifted immediately and prior to their 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 bans imposed on the Respondents, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

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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