FIFA - Decisión disputa Poe 22062023

REF. FPSD-8067

Decision of the Dispute Resolution Chamber passed on 22 June 2023 regarding an employment-related dispute concerning the player Jean Morel Poe

COMPOSITION: Omar Ongaro (Italy), Deputy Chairperson André dos Santos Megale (Brazil), member Stefano Sartori (Italy), member

CLAIMANT/COUNTER-RESPONDENT:

Ismaily SC, Egypt

RESPONDENT/COUNTER-CLAIMANT:

Jean Morel Poe, Ivory Coast Represented by Kiryl Maleyeu

INTERVENING PARTY:

FC Kryvbas, Ukraine pg. 2

REF. FPSD-8067

I. Facts of the case

1. On 11 January 2022, the Egyptian club, Ismaily SC (hereinafter: club) and the player from the Ivory Coast, Jean Morel Poe (hereinafter: player) concluded an employment contract

(hereinafter: contract) valid as from 11 January 2022 until the end of the season 2024/2025.

2. According to the contract, the club undertook to pay the player the following gross amounts: - USD 83,333 on 11 January 2022; - USD 10,000 on the 1st day of each month between February 2022 and April 2022 (3x); - USD 10,000 on 1 June 2022; - USD 43,333 on 1 August 2022; - USD 83,333 on 1 September 2022; - USD 16,700 on the first day of each month between October 2022 and July 2023 (10x); - USD 83,333 on 1 August 2023; - USD 91,833 on 1 September 2023; - USD 18,300 on the first day of each month between October 2023 and July 2024 (10x); - USD 91,833 on 1 August 2024;

• USD 100,000 on 1 September 2024; - USD 20,000 on the first day of each month between October 2024 and July 2025 (10x); - USD 100,000 on 1 August 2025.

3. The contract further establishes: - Art. 4.6.: “The player should bear the taxes of this contract and other remuneration according to the law, the club shall deduct taxes from the player dues and transfer them to the taxes under this responsibility”. - Art. 6 par. 2: “Due to the rate of income tax for individuals in Egypt at the date of this contract signature is set on 25% value of the contract net amount is USD 950,000”. - Art 6 par. 3: “The player shall receive amount of EGP 7,000 only per month for accommodation”. - Art 6 par. 4: “The player has the right one air ticket per year”.

4. The club’s “Financial Regulations for the first football team of Ismaily Sporting ClubSeason 2021/2022” state: “25% of the value of the player’s contract is set aside and paid after the end of the season, in case he participates in 80% of the matches”.

5. On 5 September 2022, the club, the player and the Ukrainian club, FC Kryvbas signed an agreement regarding the loan transfer (hereinafter: loan agreement) of the player from the club to FC Kryvbas for the period as of 5 September 2022 until 31 May 2023, including a monthly salary of USD 6,000. pg. 3

REF. FPSD-8067

6. On 1 July 2022, the player put the club in default and requested payment of USD 20,810 net, corresponding to various partial salaries as of January 2022. The player requested payment within 10 days.

7. On 5 July 2022, the player put the club in default and requested immediately to hand out his passport.

8. On 13 July 2022, the club sent a letter to the player acknowledging the outstanding amount and pointing out that it was remitted on 7 July 2022. As to the passport, the club held that it is its right to obtain the passport and that it did not refuse to hand it to the player if needed for transactions etc.

9. On 3 October 2022, the player put the club in default and requested payment of USD 95,884 and EGP 21,000, corresponding to various partial salaries as of April 2022, accommodation fees and a flight ticket. The player requested payment within 15 days, until 18 October 2022.

10. On 16 October 2022, the club replied to the player requesting to meet in a video meeting in order to discuss the outstanding remuneration. The club stated that it deducts 25% of the player’s salary due to his low participation during the season 2021/2022. Furthermore, the club pointed out that the player requested payment of an instalment belonging to the new season, for which no further salary payments are due.

11. On 17 October 2022, the player rejected the club’s invitation for the meeting since he was busy obtaining a VISA for the Ukraine. He referred to his default notice, which is self-explanatory.

12. On 19 October 2022, the player terminated the contract with the club due to the outstanding remuneration.

13. On 23 October 2022, the club remitted a payment of EGP 21,000 as accommodation allowance to the player. pg. 4

REF. FPSD-8067

II. Proceedings before FIFA

1. On 2 November 2022, the club filed its claim against the player before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

2. In its claim, Ismaily SC requested payment of USD 1,375,000 as compensation for breach of contract, plus 5% interest p.a.

3. In this framework, the club argued that the player had no just cause to terminate the contract.

4. The club pointed out that it imposed a fine of EGP 50,000 (USD 3,302) on all the players on 28 March 2022, after they refrained from participating in a training session. Said fines were not contested by any player.

5. According to the club said fine was proportionate and in accordance with the internal regulations.

6. Further, the club held that if complied with its financial obligations during the season 2021/2022 since the total amount the player was entitled to was a gross amount.

7. According to the club, it deducted the following amounts validly: - USD 166,666 (gross entitlement) - USD 41,666 (25% tax fees) - USD 31,250 (25% deduction based on internal regulations for partication of less than 80%) - USD 3,302 corresponding to the fine imposed - USD 90,448 as residual entitlement of the player.

8. On account of the above, the club pointed out that it remitted the total amount of USD 92,500 to the player and therefore fulfilled its financial obligations.

b. Position of the Respondent / Counterclaim

9. In his reply, the player rejected the claim and lodged a counterclaim against the club, requesting payment of the following monies: - USD 95,884 net as outstanding remuneration; - USD 812,300 net as compensation for breach of contract; - USD 120,000 net as additional compensation; - USD 30,000 net as “compensation for temporarily impossibility to join FC Kryvbas”.

The player requested interest of 5% p.a. as of the due dates. pg. 5

REF. FPSD-8067

14. The player argued that he had just cause to terminate the contract on 19 October 2022 due to the outstanding remuneration of USD 95,884, after having put the club in default on 3 October 2022.

15. Moreover, on top of the outstanding remuneration, the player pointed out that the club made numerous breaches of the contract: - Trying to pressure him into a settlement agreement favourable for the club (note: alleged draft of settlement is on file, without signatures); - Put the player in the second team without reasons, restricting his “playing time

(practice)”; - Deprivation of the passport of the player; - Non-compliance with the loan agreement signed with FC Kryvbas (ITC procedure); - Failing to properly support him in the VISA process in Egypt.

16. As to the alleged fine, the player rejected he arguments of the club and held that he was never notified of such fine. Also, the player maintained that the club agreed with the calculation of the player and remitted the outstanding amount in July 2022, without mentioning any fine.

17. The player rejected the argumentation of the club regarding the agreed deduction in the regulations if the player appears in less than 80% of the matches. He held that such handwritten acknowledgement in the contract was inserted after he signed the document.

18. The player pointed out that the club did not submit any other proof that he had agreed to said deduction.

19. Further, the player argued that such one sided clause shall be disregarded as it solely favours the club, which is in direct control of the appearances of the player.

20. Additionally, the player claimed that his payment dated 1 September 2022 was due

(USD 62,500 net) and remained unpaid.

21. On account of the above, he held that the following payments remained outstanding

(USD 95,884): - USD 32,500 net (instalment due on 1 August 2022, USD 43,333 gross);

• USD 62,500 net (instalment due on 1 September 2022, USD 83,333 gross); - USD 884 as reimbursement for a flight ticket.

22. The player argued that such outstanding amount corresponds to more than two monthly salaries and that he therefore had just cause to terminate the contract. pg. 6

REF. FPSD-8067

c. Reply to the counterclaim

23. In its reply to the counterclaim, the club reiterated its position.

24. The club rejected the player’s argument regarding the alleged draft of the settlement agreement. According to the club such document was not issued by the club and the player “forged” it.

25. Furthermore, the club rejected having inserted the clause about the deduction of the player’s salary after the signatures.

26. The club also upholds its argument that the player was notified about his fine and is in accordance with its regulations. Nevertheless, the club confirms that it remitted his outstanding remuneration in July 2022 as due to the “simplicity of the sanction (USD 3,302), the club chose not to risk”.

27. Moreover, the club argued that the parties “agreed” that the instalment due on 1

September 2022 (USD 83,333 gross) was not payable, otherwise it would have not agreed to loan the player 4 days later without a loan fee.

28. The club reiterated that the player terminated the contract without just cause, however, alternatively, in case the DRC decides that the player had just cause, it requested to refrain from awarding any compensation to the player since the club settled the outstanding remuneration in July 2022 in full and since it tried to amicably settle the matter, which was rejected by the player.

29. In any case, the club requested to consider the mitigation to a possible compensation since the player has a new club.

d. Position of the new club

30. The new club submitted its comments and endorsed the player’s position. pg. 7

REF. FPSD-8067

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

10. 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 2 November 2022 and submitted for decision on 22 June 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

11. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (March 2022 edition), 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 player and a club.

12. 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 Players (May 2023 edition), and considering that the present claim was lodged on 2 November 2022, the July 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

13. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 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 Chamber stressed

the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS). c. Merits of the dispute

14. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Chamber 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. pg. 8

REF. FPSD-8067

1. Main legal discussion and considerations

15. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute that the player had just cause to terminate the contract on 19 October 2022.

16. In this context, the Chamber acknowledged that its task was to decide if the player had indeed just cause to terminate the contract or not, and to decide on the consequences thereof.

17. The members of the Chamber noted that this matter concerns a claim of a club against a player for breach of contract, including a counterclaim of the player.

18. The DRC further acknowledged that according to the club, the player terminated the contract without just cause since it complied with all its financial obligations, whereby the player held that he had just cause due to outstanding remuneration.

19. In this framework, the Chamber analysed the player’s argument, according to which the instalment due on 1 August 2022 and 1 September 2022 remained outstanding. On the other side, the club maintained that it made the following deductions: -USD 31,250 as 25% deduction based on internal regulations for participating in less than 80% of the matches; -USD 3,302 corresponding to the fine imposed.

20. As to the clause allowing to deduct 25% of the player’s salary in case he plays less than 80%, the Chamber noted that the player stated not being aware of such clause as it was allegedly inserted after his signature. However, the DRC also took into consideration that the club denied such allegation.

21. However, the members of the Chamber started to analyse the clause inserted in the club’s regulations, which reads: “Financial Regulations for the first football team of Ismaily Sporting Club - Season 2021/2022” state: “25% of the value of the player’s contract is set aside and paid after the end of the season, in case he participates in 80% of the matches”

22. The DRC maintained that such a clause is solely in the club’s favour as it holds the power of deciding how many matches the player would play. In accordance with the jurisprudence of the Football Tribunal, the Chamber decided to disregard the potestative clause and therefore not to take into account this deduction made by the club. pg. 9

REF. FPSD-8067

23. As to the alleged fine that was deducted by the club, the DRC held that there is no proof on file showing that due process was followed, the player was duly notified and his right to be heard was granted. Moreover, the Chamber noted that club confirmed that it did not deduct such fine from the player’s salaries in July 2022. Therefore, the members of the Chamber decided to disregard such deduction as well and therefore reject the club’s argument in this regard.

24. The Chamber stated that the tax deductions (25% tax fees) made by the club are acknowledged by the player as the contract refers to gross amounts.

25. Subsequently, the Chamber continued to analyse the club’s argument that the parties “agreed” that the instalment due on 1 September 2022 was not payable anymore in the light of the player’s loan. In this context, the DRC noted however that there is no proof on

file to corroborate said allegation. Therefore, the Chamber rejected said argument and concluded that the player was entitled to said amount.

26. The DRC pointed out that in the case at hand the club bore the burden of proving that it indeed complied with its financial terms of the contract concluded between the parties.

However, the Chamber wished to emphasize that there is no proof on file that the club remitted the instalments due on 1 August 2022 (USD 32,500 net) and 1 September 2022 (USD 62,500 net).

27. Considering the total net entitlement of salaries between 11 January 2022 and 5 September 2022, which amounts to USD 187,500 (USD 62,500+30,000+32,500+62,500), the monthly average net salary amounts to USD 23,437.50 (USD 187,500/8 months). Taking into account such monthly remuneration, the DRC concluded that more than two monthly salaries remained outstanding at the time of the termination.

28. Thus, considering the default notice sent by the player, the Chamber concluded that the player had a just cause to unilaterally terminate the contract on 19 October 2022, based on art. 14bis of the Regulations. ii. Consequences

29. 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 club.

30. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, amount to USD 95,000 (USD 32,500 and USD 62,500). Furthermore, the player is entitled to reimbursement of his flight ticket (USD 884). pg. 10

REF. FPSD-8067

31. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the club is liable to pay to the player the amounts which were

outstanding under the contract at the moment of the termination, i.e. USD 95,884.

32. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest at the rate of 5% p.a. on the outstanding amounts as from the due dates until the date of effective payment.

33. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Chamber 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 player 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.

34. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained 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 Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

35. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in 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. pg. 11

REF. FPSD-8067

36. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract from the date of its unilateral termination until its end date. The DRC concluded that the residual value of the contract amounts to USD 762,750 net (taking into account the 25% tax deduction agreed upon in the contract), as follows: - USD 12,525 net (USD 16,700 gross between October 2022 and July 2023 (10x); - USD 62,500 net (USD 83,333 gross on 1 August 2023); - USD 68,875 net (USD 91,833 gross on 1 September 2023); - USD 13,725 net (USD 18,300 gross between October 2023 and July 2024 (10x); - USD 68,875 net (USD 91,833 gross on 1 August 2024); - USD 75,000 net (USD 100,000 gross on 1 September 2024); - USD 15,000 net (USD 20,000 gross between October 2024 and July 2025 (10x); - USD 75,000 net (USD 100,000 gross on 1 August 2025).

37. Consequently, the Chamber concluded that the amount of USD 762,750 serves as the basis for the determination of the amount of compensation for breach of contract.

38. In continuation, the Chamber verified as to whether the player 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 as well as art. 17 par. 1 lit. ii) of the Regulations, 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.

39. Indeed, the player found employment with FC Kryvbas. In accordance with the pertinent employment contract, the player was entitled to approximately USD 6,000 per month.

Therefore, the Chamber concluded that the player mitigated his damages in the total amount of USD 54,000, that is, 9 times USD 6,000.

40. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player 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 case of egregious circumstances, the additional compensation may be increased up to a maximum of six monthly salaries, whereby the overall compensation may never exceed the rest value of the prematurely terminated contract.

41. In the case at hand, the Chamber confirmed that the contract termination took place due to said reason i.e. overdue payables by the club, and therefore decided that the player shall receive additional compensation. pg. 12

REF. FPSD-8067

42. With the above in mind, the Chamber recalled that from the evidence on file, it transpires that the passport of the player was in possession of the club for a period during the contractual relationship. The club itself confirmed such allegation.

43. In view of the foregoing, and on the basis of the information and documentation on file, the Chamber deemed that the threshold of egregious circumstances is met in the matter at hand and therefore decided to award the player additional compensation corresponding to four monthly salaries, in accordance with the above-mentioned provision. On account of the above, the Chamber decided to grant additional compensation in the amount of USD 54,000, as the overall compensation may never exceed the rest value of the prematurely terminated contract

44. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of USD 762,750 to the player (i.e. USD 762,750 minus USD 54,000 plus USD 54,000), which

was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

45. Lastly, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as of 19 October 2022 until the date of effective payment. iii. Compliance with monetary decisions

46. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par. 1 and 2 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.

47. 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.

48. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount due (including all applicable interest) to the player within 45 days of notification of the decision, failing which, at the request of the player, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations. pg. 13

REF. FPSD-8067

49. The club shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision.

50. 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. 24 par. 8 of

the Regulations. d. Costs

51. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

52. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

53. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 14

REF. FPSD-8067

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/Counter-Respondent, Ismaily SC, is rejected.

2. The counterclaim of the Respondent/Counter-Claimant, Jean Morel Poe, is partially accepted.

3. The Claimant/Counter-Respondent must pay to the Respondent/Counter-Claimant the following amount(s): - USD 32,500 net as outstanding remuneration plus 5% interest p.a. as from 2 August 2022 until the date of effective payment; - USD 62,500 net as outstanding remuneration plus 5% interest p.a. as from 2 September 2022 until the date of effective payment; - USD 884 as reimbursement plus 5% interest p.a. as from 19 October 2022 until the date of effective payment; - USD 762,750 net as compensation for breach of contract without just cause plus 5% interest p.a. as from 19 October 2022 until the date of effective payment.

4. Any further claims of the Respondent/Counter-Claimant are rejected.

5. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

6. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment

(including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Claimant/Counter-Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall be of up to 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 made by the end of the three entire and consecutive registration periods.

7. The consequences shall only be enforced at the request of the Respondent/CounterClaimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 15

REF. FPSD-8067

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 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 17 of the Procedural Rules Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 16