FIFA - Decisión disputa Sahraoui 11052023

REF. FPSD-8081

Decision of the Dispute Resolution Chamber passed on 11 May 2023 regarding an employment-related dispute concerning the player Marouane Sahraoui

COMPOSITION:

Clifford J. Hendel (USA & France), Deputy Chairperson Stella Maris Juncos (Argentina), Member Alejandro Atilio Taraborrelli (Argentina/Italy), Member

CLAIMANT:

Marouane Sahraoui, Tunisia Represented by Slim Boulasnem

RESPONDENT:

Future FC, Egypt pg. 2

REF. FPSD-8081

I. Facts of the case

1. On 29 January 2022, the Tunisian player, Marouane Sahraoui (hereinafter: the player or the Claimant) and the Egyptian club, Future FC (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the contract), valid as from the date of its signature and until the end of the 2024/2025 season (according to the information displayed in the Transfer Matching System (TMS), the said season will presumably come to an end on 30 June 2025).

2. According to clauses 1 and 6 of the contract, the club undertook to pay to the player – inter alia – the following remuneration and further benefits: Season 2021/2022: USD 125,000 and EGP 10,000 - USD 31,250 payable by 1 February 2022; - USD 10,415 as monthly salary, payable on the first day of the month between March and August 2022, i.e. 6 salaries of USD 10,415 each; - USD 31,250, payable by 1 September 2022; - EGP 10,000 as monthly housing allowance; - The club will provide the player with transportation and a flight ticket; - A bonus of 25% of the value of the contract for this season, should the player

participate in 75% of the official games played by the club during the season. Season 2022/2023: USD 250,000 - USD 62,500 payable by 1 October 2022; - USD 12,500 as monthly salary, payable on the first day of the month between November 2022 and August 2023, i.e. 10 salaries of USD 12,500 each; - USD 62,500, payable by 1 September 2023; - EGP 10,000 as monthly housing allowance; - The club will provide the player with transportation and a flight ticket; - A bonus of 25% of the value of the contract for this season, should the player participate in 75% of the official games played by the club during the season. Season 2023/2024: USD 300,000 - USD 75,000 payable by 1 October 2023; - USD 15,000 as monthly salary, payable on the first day of the month between November 2023 and August 2024, i.e. 10 salaries of USD 12,500 each; - USD 75,000 payable by 1 September 2024. Season 2024/2025: USD 350,000 - USD 87,500 payable by 1 October 2024; pg. 3 REF. FPSD-8081 - USD 17,500 as monthly salary, payable on the first day of the month between November 2024 and August 2025, i.e. 10 salaries of USD 17,500 each; - USD 87,500 payable by 1 September 2025; - EGP 10,000 as monthly housing allowance; - The club will provide the player with transportation and a flight ticket; - A bonus of 25% of the value of the contract for this season, should the player participate in 75% of the official games played by the club during the season; - USD 25,000 as bonus, should the player play in 10 games where no goal is scored

against the club.

3. Also according to clause 6 of the contract, the parties agreed that the club could – by the end of the 2021/2022 season – unilaterally terminate the contract, provided that the club notified the player so within 15 days after the end of said season.

4. On 4 September 2022, the club notified a letter to the player, referring to clause 6 of the contract and informing the player that the contractual relationship was unilaterally terminated by the club and that the latter would proceed with the payment of the outstanding remuneration due to the player in the amount of EGP 140,000 (approx.: USD 4,500 and not USD 7,000 as later said by the player), which would be paid to the player in due course (document signed by both parties and with the indication “sous reserve” of the player).

5. On the same date, the parties signed a document, confirming that the player received his passport.

6. By means of his e-mail of 3 October 2022, the player communicated to the club that its behavior towards him was abusive, the club forcing the player to sign the termination agreement, since it would not otherwise give him his passport and that, therefore, the premature termination of the contract is to be considered as made without just cause by the club, the player – thereby – requesting the club to proceed with the payment of his outstanding remuneration, as well as of a compensation for breach of contract; to no avail.

7. On 10 October 2022, the player signed a new contract (hereinafter: the new contract) with the Egyptian club, ENPPI, valid as from the date of its signature and until 30 June 2025, whereby the player was entitled to a total fixed amount of USD 503,225, contract that was terminated on 29 January 2023; the player remaining unemployed ever since. Thus, during the period October 2022 – January 2023, the player received an income of approximately

USD 95,852 ((502,225 /21)4 = 95,852). pg. 4

REF. FPSD-8081

II. Proceedings before FIFA

a. Position of the Claimant

8. On 2 November 2022, the Claimant lodged a claim against the Respondent before the Football Tribunal, requesting to be awarded outstanding remuneration and compensation for breach of contract in the total amount of USD 1,156,660 and EGP 370,000 (approx.: USD 12,000), plus 5% interest p.a. as from the respective due dates; amounts broken down by the Claimant as follows: Outstanding remuneration: USD 41,660 and EGP 50,000 - USD 2,730 as unpaid part of the salary of May 2022; - USD 7,680 as unpaid part of the salary of August 2022; - USD 31,250 corresponding to the lump sum payable by 1 September 2022; - EGP 50,000 corresponding to the unpaid housing allowances, payable between April and August 2022 in the amount of EGP 10,000 each.

Compensation for breach of contract: USD 900,000 and EGP 370,000 - USD 900,000 corresponding to the residual value of the contract during the seasons 2022/2023, 2023/2024 and 2024/2025 (fixed salaries and lump sums); - EGP 370,000 corresponding to 37 housing allowances of EGP 10,000 each (payable between September 2022 and September 2025). Additional compensation for the specificity of the sport: USD 210,000 - USD 210,000 corresponding to 12 salaries of USD 17,500 each (note: no further explanation).

Legal costs: USD 5,000 - USD 5,000 as legal costs.

9. In his claim, the player explained that the club constantly paid his remuneration in a late

manner, failed to provide a valid residence permit to the player during the entire contractual relationship and even confiscated his passport on 13 August 2022.

10. In addition, the player held that – by the end of the 2021/2022 season – the club insisted on prematurely terminating the contractual relationship, but the player refused to do so.

What is more, the player explained that, on 4 September 2022, the club convoked the player for a meeting at night and informed him that the club had unilaterally decided to pg. 5 REF. FPSD-8081 terminate the contract, forcing the player to sign the termination agreement in order to receive his passport. In this respect, the player maintained that a proof of the bad faith of the club and the player’s disagreement to the premature termination of the contract was the player’s inclusion – in the termination agreement – of the words “with reserves” (free translation from the original text: “sous réserve”).

11. In this respect, the player maintained that the signature of the player on the termination agreement is viced, insofar as the club blackmailed him when communicating to him that the club would not give him back his passport unless he signed said termination agreement.

12. Moreover, the player highlighted that – by the date on which the termination agreement was signed (under an alleged duress) – the amount of USD 41,660 was outstanding and the said termination agreement only contemplates a payment of USD 7,000 to the player; therefore, explained the Claimant, it would not make sense for him to just condone approximately USD 35,000 against no counter-consideration.

13. Furthermore, the player argued that, in any event, he cannot possibly waive his entitlement to be remunerated for a work already performed.

14. In view of all of the above, the player wished to stress – again – the bad faith and abusive conduct of the club and that the premature termination of the contract was made

unilaterally (and not mutually) by the club, which now enables him to claim his outstanding remuneration, as well as compensation(s) for breach of contract. b. Position of the Respondent

15. In its reply, the Respondent held – inter alia – the following: - That “after the end of the sports season 2021/2022 and during the period specified for notification, [the Respondent] notified the player to activate [clause 6] agreed in the contract that the club did not want the player to continue in the team, and this was on 4/9/2022 and the player signed the necessary papers”, reason why the player cannot argue any duress; - That the club complied with the payment of the amounts due to the player until August 2022 and that, thereafter, the parties were no longer contractually engaged, as the contract was validly terminated by the end of the 2021/2022 season. - On this note, the club argued that, had the club been in default of payment, the player would have put the club in default of payment before and that he only did so once month after the termination of the contract; pg. 6

REF. FPSD-8081 - As to the alleged retention of the player’s passport, the club held that it needed the original passport of the player in order to register him to participate in the CAF Championship and in order to obtain the player’s residence visa; - The club argued that the player, after the termination of the contract, concluded a new contract with the Egyptian club, ENPPI, which shall, in any case, be considered; - In view of all of the above, the Respondent requested the claims of the player be rejected. c. Rejoinder of the Claimant

16. In his rejoinder, the Claimant argued the following: - That clause 6 of the contract is null and void, insofar it is discretionary and only in favour of the club;

• That the termination agreement is actually a unilateral letter of the club, as is demonstrated by its very wording, when stating that the contractual relationship was unilaterally terminated by the club and was only signed by the player under duress to receive his passport. - In this respect, the player referred – again – to the fact that the parties, on the very same date, signed another document whereby the player acknowledged receipt of this passport and to the fact that he included in the termination agreement the words “sous réserve”; - Lastly, the player rejected all the argumentation of the club and reiterated his request for relief; - The player confirmed being unemployed upon termination of the new contract.

d. Rejoinder of the Claimant

17. In its final comments, the club reiterated his previous arguments. pg. 7

REF. FPSD-8081

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

18. 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 11 May 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.

19. 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 from Tunisia and a club from Egypt.

20. 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 (March 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

21. 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

22. 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-8081

1. Main legal discussion and considerations

23. The foregoing having been established, the Chamber moved to the substance of the matter and deemed it vital to formulate the following question(s): A.) Was the contractual relationship validly terminated on 4 September 2022 by virtue of the so-called termination agreement or was it unilaterally terminated and, in the latter case:

was it terminated with or without just cause? Is clause 6 of the contract valid?

24. In this respect, the DRC pointed out that both questions seem to be tangled insofar as the termination of the contract – which occurred after the end of the 2021/2022 season – was made unilaterally by the club invoking clause 6 of the contract, in accordance with which the club had the right to unilaterally terminate the contract by the end of the season, provided that the latter notified the termination to the player within 15 days after the end of the said sporting season.

25. The above being said, the DRC unanimously concluded that clause 6 of the contract is null and void in accordance with the jurisprudence of the Football Tribunal, as for unilateral termination clauses are, in principle, not valid as they are of a discretionary nature and do not create reciprocal rights on the contracting parties. Therefore, the Chamber underscored that the termination of the contract could not possibly made with just cause in application of said clause.

26. In this context, the DRC determined that the so-called termination agreement must be analysed. As pointed out by the Claimant, underscored the DRC, the said agreement is actually no termination agreement, but a letter issued by the club, whereby the latter is exercising its alleged right to unilaterally terminate the contract. The key issue in this respect, assessed the Chamber, seems to be whether the inclusion of the signature of the player in said document serves as proof of his consent to prematurely terminate the contractual relationship, or not.

27. In this regard, the Chamber came to the conclusion that the factual circumstances surrounding the signature of the said letter must be considered: 1.) at that moment in time

(on 4 September 2022), the club was in default of payment of USD 41,660 (extent that has been proven in the present proceedings, considering that the payment proof provided by the club cannot be accepted as it does not state that the relevant payments were made in

favour of the player) and, in the said letter (the termination agreement), it is stated that an amount equal to USD 4,500, corresponding to the player’s outstanding remuneration, would be paid to the latter, which represents around 10% of the actual outstanding amount; 2.) the player did include in the said termination agreement the words “sous reserve”, which means under reserves and expresses his at least partial disagreement with the content of the letter; 3.) it remained uncontested that the club called the player at night to sign the termination agreement and, on the very same day, the parties signed a document confirming the player’s receipt of his passport. pg. 9

REF. FPSD-8081

28. In view of all of the above, the Chamber unanimously decided that the Claimant has sufficiently proven that the termination agreement was signed under duress in order to receive his passport and, therefore, the said termination agreement shall produce no effects.

29. In view of all of the above, the Chamber further concluded that the Respondent terminated the contract without just cause on 4 September 2022. ii. Consequences

30. 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

Respondent.

31. 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 41,660 and EGP 50,000, broken down as follows: - USD 2,730 as unpaid part of the salary of May 2022; - USD 7,680 as unpaid part of the salary of August 2022; - USD 31,250 corresponding to the lump sum payable by 1 September 2022; - EGP 50,000 corresponding to the unpaid housing allowances, payable between April and August 2022 in the amount of EGP 10,000 each.

32. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,

the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. USD 41,660 and EGP 50,000.

33. 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 Claimant interest at the rate of 5% p.a. on the outstanding amounts as from their respective due dates (as defined in the operative part of the present decision) and until the date of effective payment.

34. 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. pg. 10

REF. FPSD-8081

35. 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.

36. 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.

37. 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. Consequently, the Chamber concluded that the amount of USD 900,000 and EGP 370,000 (i.e. the residual value of the contract) 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 the Egyptian club, EPPI. In accordance with the pertinent employment contract and considering that this new contract was also prematurely terminated, the Chamber observed that the player, from his contractual relationship with his new club, received a total fixed remuneration of approximately USD

95,852.

40. At this point, the Chamber observed that, despite the player’s mitigation, no additional compensation would in principle be due to the Claimant cf. art. 17 par. 1 lit. ii) of the Regulations, as said additional compensation is reserved to scenarios where the Claimant terminates the contract due to overdue payables and, in casu, despite the fact that the club did have overdue payables towards the player, insofar as it was the Respondent the party

that terminated the contract – without just cause – the additional compensation would be however excluded. pg. 11

REF. FPSD-8081

41. Therefore, being mindful of the above and considering the special and egregious circumstances that surrounded the termination of the contract, i.e. that the club, which owed the player amounts of USD 41,660 and EGP 50,000, summoned the player at night to force him to sign a termination agreement – against payment of an amount of approximately 10% of his actual financial dues – in order for the player to receive his passport; the Chamber – basing its assessment on the concept of the specificity of sport and the abovementioned elements, which the DRC considered as proven and, therefore, objective – decided that the player’s new income under his new contract with ENPPI shall not mitigate his compensation for breach of contract, the player being, therefore, entitled to the full residual value of the contract as compensation for breach of contract, which the Chamber considered reasonable and proportionate in view of the abusive behaviour of the Respondent, which shall be condemned.

42. 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 amounts of USD 900,000 and EGP 370,000 to the player (i.e. the full residual value of the contract), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

43. 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 4 September 2022 (i.e. as from the date of termination) until the date of effective payment. iii. Compliance with monetary decisions

44. 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.

45. 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.

46. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, 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. 12

REF. FPSD-8081

47. The Respondent 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.

48. 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

49. 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.

50. 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.

51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 13

REF. FPSD-8081

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Marouane Sahraoui, is partially accepted.

2. The Respondent, Future FC, must pay to the Claimant the following amount(s): - USD 41,660 and EGP 50,000 as outstanding remuneration plus 5% interest p.a. as follows: - On the amount EGP 10,000, as from 1 May 2022 until the date of effective payment; - On the amounts of USD 2,730 and EGP 10,000, as from 1 June 2022 until the date of effective payment; - On the amount EGP 10,000, as from 1 July 2022 until the date of effective payment; - On the amount EGP 10,000, as from 1 August 2022 until the date of effective payment; - On the amounts of USD 7,680 and EGP 10,000, as from 1 September 2022 until the date of effective payment; - On the amount of USD 31,250, as from 2 September 2022 until the date of effective payment. - USD 900,000 and EGP 370,000 as compensation for breach of contract, plus interest 5% interest p.a. as from 4 September 2022 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

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

5. 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 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. pg. 14

REF. FPSD-8081

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

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero

Chief Legal & Compliance Officer 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. 15