Pyramids FC v. Cristian Benavente Bristol, Fédération Internationale de Football Association (FIFA)

II. FACTUAL BACKGROUND

7. Below is a summary of the main relevant facts and allegations based on the Parties’ submissions. Additional facts and allegations may be set out, where relevant, in connection with the legal

discussion that follows. This factual background information is given for the sole purpose of providing a synopsis of the matter in dispute. Although the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, it refers in this award (the “Award”) only to the submissions and evidence it considers necessary to explain its reasoning.

(A) Introduction

8. This appeal case (the “Appeal”) before the Court of Arbitration for Sport (the “CAS”) is related to the challenging of the decision adopted by the FIFA Dispute Resolution Chamber (the “FIFA DRC”) on 21 April 2021 (case ref. FPSD-4199), with grounds communicated to the Contracting Parties on 17 May 2021, which ordered Pyramids to pay the Player the total amount of EUR 1,500,000 net as compensation due to outstanding salaries and remuneration values (the “Appealed Decision” or the “FIFA DRC Decision”).

(B) The Employment Agreement between the Player and the Club

9. On 22 January 2019, the Belgian club Sporting du Pays de Charleroi NV (“Charleroi”) and Pyramids signed a transfer agreement by means of which the Player was transferred to the latter against the payment of a transfer fee amounting to EUR 4,350,000 net (the “Transfer Fee”). On this same date, Pyramids and the Player signed an employment contract valid as from the date of signature until 30 June 2022 (the “Employment Contract”).

10. Item 4 of the Employment Contract established the following:

“Item 4: Obligations of the [Club]:

The total amount of the [Employment Contract] is (EUR 5,250,000) (…), the [Club] shall comply to pay this amount as following:

1. Payment of a monthly salary of (EUR 87,500) (…) to the [Player] at the end of every Gregorian month.

2. (…) EUR 225,000 to be paid by cash for the [P]layer in 30-01-2019.

3. (…) EUR 450,000 to be paid by cash for the [P]layer in 30-08-2019.

4. (…) EUR 450,000 to be paid by cash for the [P]layer in 30-08-2020.

5. (…) EUR 450,000 to be paid by cash for the [P]layer in 30-08-2021.

6. The Club shall provide the [Player] with six return Business Class air tickets for him and his wife and kids from his country to Egypt per season.

7. Housing allowance: the [C]lub provides free housing for the [P]layer.

8. Transportation: the [C]lub provides free car for the [P]layer

(…)”.

11. Furthermore, Item 6 of the Employment Contract established the following:

“Item 6: Regular Payment of Salary & Termination of Contract

1. The [Club] may not delay payment of the [Player’s] salaries or terminate the [Employment Contract] due to [P]layer’s injury during play or training.

2. In case the [Club] fails to pay to the [Player] two monthly salaries as determined in Item 4 of (…) [the Employment] Contract, [the Player] is obliged to send the [Club] notice in writing, expressly warning that he will unilaterally terminate the contract for such non-payment and give it a further term of ten (10) working days to pay in full such monetary amount. If within the next ten (10) working days, the [Club] fails to pay to the [Player] this monetary amount, the [Player] shall have the right to unilaterally terminate (…) [the Employment] Contract with just cause and request compensation”.

(C) The loan of the Player to FC Nantes

12. On 4 August 2019, Pyramids and the French club FC Nantes (“FC Nantes”), signed a loan agreement (the “First Loan Agreement”) by which the Player was temporary transferred from the former to the latter from 5 August 2019 until 30 June 2020 (the “Term of the First Loan”).

13. On 5 August 2019, the Player and Pyramids signed a side agreement titled “loan agreement” according to which they stipulated the conditions of the loan period to FC Nantes (the “First Side Agreement”). In accordance with Clause 3.1 of the First Side Agreement, Pyramids undertook to pay the Player the following amounts:

(a) EUR 500,000 net “after five business days commencing from the actual date of receiving the amount from [FC Nantes] and this amount shall be paid from [FC Nantes] to [Pyramids FC] on 1 September 2019”; and

(b) EUR 500,000 net, payable in five instalments of EUR 100,000 each, due by: (i) 15 September 2019; (ii) 15 October 2019; (iii) 15 November 2019; (iv) 15 December 2019; and (v) 31 December 2019.

14. In addition, Clause 3.2 of the First Side Agreement reads as follows: “Hence, by receiving from [Pyramids] these payments in (2019-2020) for the year loan, the [P]layer acknowledges that he received all his dues from [Pyramids] and he has no right to claim [Pyramids] during the loan period, and all player’s financial rights, set out in [the First Side A]greement, are the sole rights that he may have accordingly”.

15. On 28 June 2020, Pyramids sent the Player a letter informing inter alia that: (i) the national championship for the 2019/2020 season would resume in July 2020 after the suspension caused by the COVID-19 pandemic, and the commencement of the 2020/2021 would be announced after the ending of the previous championship; (ii) the provisions of the Employment Contract would be effective as from the beginning of the 2020/2021 season; and (iii) the Club would

notify the Player once the league of 2019/2020 season had ended in order to “start negotiations of rescheduling the salaries, set forth in [the Employment Contract], in accordance with the new season period”.

16. On 29 June 2020, the Player replied to Pyramids’ letter, in quoted verbatim: “(…) My understanding is that you do not want me to join the trainings on July 1, 2020 and want me to wait until the calendar of 20/21 season is clarified (hopefully during July). I have no issue with this but I remain at your disposal to return asap to physical training. In the meanwhile, I will maintain personal training and expect from team physical coach a schedule of training seasons. I understand and confirm you that my contract is valid. And in place in the terms signed and agreed. Any change on that contract would be discussed at the appropriate time but I insist that my availability for the club is 100% and I am ready to resume my presence in Egypt ASAP”.

(D) The loan of the Player to the Royal Antwerp Football Club

17. On 1 October 2020, Pyramids and the Player signed a document titled “Contract of Professional Player’s Entitlements” according to which it was agreed that the Player would be loaned to the Belgian club, Royal Antwerp Football Club NV (“RAFC”) for the 2020/2021 season (the “Second Side Agreement”).

18. On 5 October 2020, Pyramids and RAFC signed a loan agreement (the “Second Loan Agreement”) valid as from 1 October 2020 until 30 June 2021 (the “Term of Second Loan”). As per the Second Loan Agreement the Parties agreed, inter alia, the following:

Clause 1.5:

“During the Term of Loan, RAFC will be responsible for payment of wages and other expenses to the Player in accordance with the employment agreement agreed between the Player and RAFC. Pyramids FC shall have no other liability to the Player during the Term of Loan. In particular, Pyramids FC shall be released from its obligations under the Employment [Contract] to pay any fee, bonus, benefit or other type of remuneration”.

Clause 3:

“1. RAFC shall have the option to complete the permanent transfer of the Player with effects from 1 July 2021 (hereinafter referred to as “Purchase Option”) provided that RAFC shall exercise this option in writing to Pyramids FC no later than 30 June 2021.

2. If RAFC does not exercise the Purchase Option in compliance with the conditions defined in this Agreement within the mentioned date, then the Player’s registration will revert back to Pyramids FC on 1 July 2021”.

19. In accordance with Article 3 of the Second Side Agreement, Pyramids undertook to pay the Player the following amounts:

(a) EUR 700,000 net, payable in seven instalments of EUR 100,000 each, due by: (i) 15 October 2020; (ii) 1 November 2020; (iii) 1 December 2020; and (iv) 1 January 2021; (v) 1 February 2021; (vi) 1 March 2021; and (vii) 1 April 2021; and

(b) EUR 200,000 net by 1 February 2021, “provided that the obligation of paying the loan fee set forth in the [Second Loan Agreement] is fulfilled by RAFC within the agreed date, which is 30 October 2020. It is agreed between the parties that the club shall not be responsible for any delay made by RAFC. The aforementioned amount will not be due as long as RAFC fails to comply with its obligation”.

20. In addition, Article 3.3 of the Second Side Agreement reads as follows: “(…) by receiving from the Club the aforementioned payments, the Player acknowledges that he waives all his dues before the Club he has no right to claim the Club with any claim derived from previous Employment [Contract] regarding the period of the Term of Loan and prior to the Term of Loan. To avoid any doubts, the Player has no rights to claim the Club with the rest salaries set forth in previous Employment [Contract] for seasons 2018/2019 and 2019/2020 in particular the last salary, and his dues derived from the loan agreement dated 05/09/2019 concluded between the Player and the Club”.

(E) The sub-loan of the Player to Charleroi

21. On 1 February 2021, Pyramids, RAFC and Charleroi signed a sub-loan agreement in accordance with which the Player was sub-loaned from RAFC to Charleroi from 1 February 2021 until 30 June 2021 (the “Sub-Loan Agreement”).

22. The Player terminated his contractual relationship with Charleroi on 30 June 2021.

(F) The dispute between the Player and the Club

23. On 1 July 2021, upon the termination of the Sub-Loan Agreement, the Player returned to Cairo (Egypt) and started participating in training sessions. The flight ticket to Cairo was provided by Pyramids.

24. On 7 September 2021, the Player put Pyramids in default and requested the payment of EUR 625,000 net corresponding to his salaries for July and August 2021, as well as the lump sum (EUR 450,000) due on 31 August 2021. The Player granted Pyramids a 10 days deadline to perform the payment.

25. On 8 September 2021, Pyramids replied to the Player’s notification and inter alia stated that “the payment dates of season 2021/2022 salaries set forth in the [E]mployment [C]ontract are delayed until the actual commencement date of new season 2021/2022”. Therefore, Pyramids wrote that it would inform the Player of the start of the season to “start the negotiations of rescheduling the salaries set forth in the employment contract in accordance with the new season period”.

26. On 10 September 2021, the Player sent another notice to Pyramids rejecting the Club’s interpretation of the facts and proposed a new payment schedule to remedy the situation:

(a) EUR 500,000 net on 1 October 2021; and

(b) EUR 1,000,000 net to be paid in 8 monthly instalments of EUR 125,000 each, the first due by 1 October 2021 and the last due by 1 June 2022.

27. On 14 September 2021, the Player’s representative sent a notice to Pyramids acknowledging that the Player had not been authorized to join the pre-season training stage in Alexandria, Egypt, together with the other members of the team. Consequently, the Player requested instructions in relation to his pre-season training. On this same date, Pyramids sent the Player a request for medical and anti-drug tests to be taken on the following day.

28. On 15 September 2021, Pyramids answered to the Player informing that – by decision of the technical staff – the Player should not join the rest of the team for the pre-season but should attend the training session in another location, under penalty of breach of the Employment Contract.

29. On 26 October 2021, the Player notified Pyramids of the termination of the Employment Contract due to overdue payables, as per Item 6 of the Employment Contract and Article 14bis of the FIFA Regulations on the Status and Transfer of Players edition August 2021 (the “RSTP”). The Player pointed out that the following amounts remained outstanding: (i) EUR 450,000 net due by 30 August 2021; and (ii) the salaries of July, August, and September 2021 (EUR 87,500 per month).

(G) Proceedings before the FIFA Dispute Resolution Chamber

30. On 4 November 2021, the Player filed a claim with the FIFA DRC against the Club requesting the payment of the following amounts:

(a) EUR 788,333.33 (net) as outstanding remuneration, corresponding the salaries from July 2021 until 26 October 2021, as well as the lump sum of EUR 450,000 due on 30 August 2021; and

(b) EUR 1,086,666.67 (net) as compensation for breach, corresponding to the residual value of the Employment Contract (EUR 711,666.67) plus three additional salaries (EUR 375,000).

31. Pyramids opposed the allegations of the Player and lodged a counterclaim. Pyramids argued that it is entitled to receive compensation for breach of the Employment Contract amounting to “one-quarter of [the Player’s] monthly salary” (i.e. EUR 21,875), as well as damages for further losses in accordance with the Swiss Law (i.e. EUR 966,666.67, corresponding to the nonamortized amount of the Transfer Fee). Furthermore, the Club requested that 5% interest p.a. as from 27 October 2021 accrued on the amounts due. Pyramids based its counterclaim on the effects of the COVID-19 outbreak and the doctrine of clausula rebus sic stantibus.

32. On 21 April 2022, the FIFA DRC issued the Appealed Decision:

“(…)

1. The claim of the [Player] is partially accepted.

2. The counterclaim of the [Club] is rejected.

3. The [Club] has to pay to the [Player] the following amount(s):

- EUR 87,500 net as outstanding remuneration plus 5% interest p.a. as from 1 August 2021 until the date of effective payment;

- EUR 450,000 net as outstanding remuneration plus 5% interest p.a. as from 31 August 2021 until the date of effective payment;

- EUR 87,500 net as outstanding remuneration plus 5% interest p.a. as from 1 September 2021 until the date of effective payment;

- EUR 87,500 net as outstanding remuneration plus 5% interest p.a. as from 1 October 2021 until the date of effective payment;

- EUR 87,500 net as outstanding remuneration plus 5% interest p.a. as from 1 November 2021 until the date of effective payment;

- EUR 700,000 net as compensation for breach of contract plus 5% interest p.a. as from 4 November 2021 until the date of effective payment.

4. Any further claims (…) are rejected.

(…)”.

33. On 17 May 2022, the grounds of the Appealed Decision were notified to the Contracting Parties. In essence, the Appealed Decision’s grounds can be summarised as follows:

• The Employment Contract was reinstated on 1 July 2021 after the termination of the Sub-Loan Agreement, seeing as the Player flew back to Cairo and reintegrated the team’s training sessions.

• The salaries of July, August, September and October 2021 and the lump sum of EUR 450,000 were due as per the Employment Contract. The Sub-Loan Agreement terminated on 30 June 2021 and the Employment Contract was reinstated on 1 July 2021. The remuneration conditions within the Second Side Agreement were only related to the Term of the Second Loan.

• The Club was unable to meet its burden of proof regarding the alleged violation of the clausula rebus sic stantibus. Pyramids did not provide any convincing documentation pertaining to the question and the concept of force majeure in line with the COVID Guidelines issued by FIFA. Furthermore, the FIFA DRC considered that the alleged financial difficulties were not valid arguments per se.

• In light of the above, the Player had just cause to terminate the Employment Contract as per Article 14bis of the RSTP and Item 6 of the Employment Contract and is entitled to receive the outstanding remuneration values plus compensation for the breach of contract

as per Article 17 of the RSTP, all of this mitigated by the amounts received from the contract signed with Alianza Lima.

(H) The new employment relationship of the Player

34. On 31 January 2022, the Player signed a new employment agreement with the Peruvian club Alianza Lima, valid as from 1 February 2022 until 31 December 2022 (the “New Employment Contract”).

35. According to the New Employment Contract, the Player was entitled to: (i) a monthly salary of USD 3,000 net; and (ii) a fixed payment of USD 176,500 net, in 11 monthly instalments, due by the last day of each month starting on 28 February 2022 and ending on 31 December 2022.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

36. On 7 June 2022, in accordance with Article R47 of the Code of Sports-related Arbitration (the “CAS Code”), the Appellant filed its Statement of Appeal (the “Statement of Appeal”) with the CAS challenging the Appealed Decision. In its Statement of Appeal, the Appellant nominated Mr Michele A. R. Bernasconi as arbitrator.

37. On 17 June 2022, the Appellant requested for a 10-day extension for filling the Appeal Brief (the “Appeal Brief”), in accordance with Article R32 of the CAS Code.

38. On 20 June 2022, the CAS Court Office granted the Appellant an extension to file the Appeal Brief until 27 June 2022.

39. On 27 June 2022, the Appellant submitted its Appeal Brief pursuant to Article R51 of the CAS Code.

40. On 29 June 2022, the Second Respondent requested to be excluded from these proceedings due to lack of standing to be sued.

41. On 30 June 2022, the CAS Court Office requested the Appellant to inform, by no later than 4 July 2022, if it wanted to maintain or withdraw the Appeal against the Second Respondent.

42. On 1 July 2022, the First Respondent requested the CAS Court Office for a suspension of his deadline to submit his Answer (the “Player’s Answer”), which was not granted.

43. On 4 July 2022, the First Respondent nominated Mr Carlos del Campo Colás as arbitrator.

44. On 6 July 2022, the Second Respondent requested the time limit to file its Answer (the “FIFA’s Answer”) to be fixed once the advance of costs was paid by the Appellant. Pursuant to Article 55 (3) of the CAS Code the request was granted by the CAS Court Office.

45. On 11 July 2022, the Second Respondent agreed to the nomination of Mr Carlos del Campo Colás as arbitrator and reiterated its lack of standing to be sued.

46. On 12 July 2022, the CAS Court Office informed the Parties that the Appellant was granted a 10-day extension – until and including 14 July 2022 – to inform whether it wanted to maintain its Appeal against the Second Respondent.

47. On 14 July 2022, the Appellant requested a copy of the CAS award with the reference CAS 2014/A/3489-3490, as well as an extension on the deadline to inform whether it wanted to maintain its Appeal against the Second Respondent.

48. On 15 July 2022, the CAS Court Office provided the Appellant with a copy of the requested award and granted an extension of six days – until and including 20 July 2022 – for the Appellant to present its position regarding its appeal against the Second Respondent.

49. On 20 July 2022, the Appellant confirmed its position in maintaining the Appeal against the Second Respondent.

50. On 29 July 2022, the First Respondent requested for a 10-day extension on the time limit to submit his answer.

51. On 2 August 2022, the CAS Court Office, on behalf of the Director General and pursuant to Article R32 (2) of the CAS Code, granted the First Respondent with the requested extension.

52. On 11 August 2022, the Player submitted his Answer.

53. On 22 August 2022, the CAS Court Office informed the Parties that the Appellant had paid its share of the advance of costs. As such, the CAS Court Office also informed that the Second Respondent’s timeline to submit its answer would start to run as from that date.

54. On 6 September 2022, the Second Respondent requested a 10-day extension of the deadline to submit its answer.

55. On 7 September 2022, the CAS Court Office informed the Parties that FIFA’s request for extension of time was granted, pursuant to Article R32 (2) of the Code.

56. On 21 September 2022, FIFA submitted its Answer.

57. On 22 September 2022, the CAS Court Office informed the Parties that the Panel to decide the Appeal was constituted as follows:

President: Mr Rui Botica Santos, Attorney-at-Law, Lisbon, Portugal

Arbitrators: Mr Michele A. R. Bernasconi, Attorney-at-Law, Zurich, Switzerland

Mr Carlos Del Campo Colás, Attorney-at-Law, Madrid, Spain.

58. On 22 September 2022, the CAS Court Office invited the Parties to inform whether they prefer a hearing to be held in this matter or for the Panel to issue an award based solely on the Parties’ written submissions.

59. On 31 October 2022, after consultation with the Parties, the Panel decided to hold a hearing via videoconference. The hearing was scheduled for 5 December 2022.

60. On 8 November 2022, the CAS Court Office issued the Order of Procedure, which was duly signed by the Parties.

61. On 5 December 2022, a hearing was held by videoconference. The following persons attended the hearing in addition to the Panel and Mr Fabien Cagneux, as CAS Managing Counsel:

1. For the Appellant

• Mr Rolf Muller – Legal Counsel

• Mr Zani Dzaferi – Legal Counsel

• Mr Mamdouh Eid – Legal Representative (CEO) and witness

2. For the First Respondent

• Mr Joaquim Jofre Fernández Abascal – Legal Counsel

• Mr Cristian Benavente Bristol – Respondent

3. For the Second Respondent

• Mr Saverio Paolo Spera – Senior Legal Counsel

• Ms Cristina Pérez González – Senior Legal Counsel

62. As a preliminary remark, the Parties were requested to confirm not having any objection to the constitution and composition of the Panel, and they so confirmed.

63. The Parties were given the opportunity to present their case and make their submissions and arguments. After the Parties’ closing submissions, the hearing was closed, and the Panel reserved its decision to this Award.

64. Before the hearing concluded, the Parties expressly stated that they had no objection to the way that these proceedings have been conducted and that the equal treatment of the Parties and their right to be heard had been respected.

IV. THE PARTIES’ SUBMISSIONS

65. The following summary of the Parties’ positions is illustrative and does not necessarily comprise each contention put forward by the Parties. The Panel, however, has carefully considered all the submissions made by the Parties, even if no explicit reference is made in what immediately follows.

(A) The Appellant’s Submissions

66. In its Appeal Brief the Appellant submits the following prayers and requests the CAS:

“1. In acceptance of the present Appeal, the decision of the FIFA Dispute Resolution Chamber of the 21 st of April 2022 (Ref. Nr. FPSD-4199) shall be fully / entirely annulled and

1.1 The claim of the First Respondent of the 3rd of November 2021 before the Second Respondent fully rejected.

1.2 The First Respondent obligated and judged to pay to the Appellant EUR 21'875.00 with a default interest of 5 % from the 27th of October 2021.

1.3 The First Respondent obligated und judged to pay to the Appellant EUR 966'666.67 with a default interest of 5 % from the 27th of October 2021.

2. The costs and compensations shall be imposed to the Respondents”.

67. The Appellant advanced the following grounds in support of the Appeal:

(i) On 26 October 2021, the Player terminated the Employment Contract without just cause.

(ii) The Player was not entitled to receive any salary during the period 1 July to 26 October 2021, because the Egyptian season 2020/21 was extended and the Payer could not be registered before the end of such season. The Player could only be registered for the season 2021/22 upon the end of the season 2020/21 (i.e. in October 2021). The Player returned to the Club on 1 July 2021 by his own initiative. The Player was allowed to join the training sessions because he was part of the team, but he was not registered, and he could not perform any services for the Club.

(iii) If the Egyptian season had ended on 30 June 2021, it would have made perfect sense for the Player to have been immediately registered for the 2021/2022 Egyptian season. But this was not the case. The Egyptian season lasted until the end of September 2021 and until this date the Player was not in a position to provide his services. If the Contracting Parties had known in advance that an Egyptian season would be extended, they would have had the opportunity to specify that the Club’s pecuniary obligations to the Player would only restart with the start of the new Egyptian season 2021/2022 (i.e. from October 2021). This circumstance has to be taken into consideration. The remuneration of the Player should not be analysed from the point of view of monthly remunerations but per season.

(iv) The Contracting Parties had signed several agreements to settle their financial obligations. The relevant agreements are the First Side Agreement and the Second Side Agreement.

(v) Nevertheless, the Sub-Loan Agreement covered the Player’s remuneration until the end of the Egyptian season 2020/21. The Egyptian season was postponed due to the pandering circumstances of COVID-19 and this fact cannot be attributed to the Club. Therefore, “(...) it must be assumed that the continued payment of salaries will only be revived when

the new season actually starts. As is known, this was only after October” and the Club “was therefore never in default”.

(vi) The Player did not have any claim against the Club for the season 2019/2020. The Egyptian season 2019/20 lasted until 31 October 2020 (i.e. longer that the French season and the Term of the First Loan. Between 1 July 2020 and 31 October 2020, the Player has not claimed any salaries and accepted that such salaries were within his contract with FC Nantes. For the season 2020/21 the Player received nearly EUR 900,000. “It does not make sense and is inconsequence, that the Player received for two seasons (2019/2020 and 2020/2021) nearly the same additional extra-amount next to the salaries, wages, etc. which he already received by the Loan Clubs, and the Player claiming additional amounts for the respective season in one season (2020/2021) and in the other season (2019/2020) not”. “(…) it is clear that the parties did also exclude any additional entitlement of the Player in the season 2020/2021 after they already agreed to an extra-compensation of EUR 900,000 next to the ones of the Loan Clubs”. The FIFA DRC did not consider these contractual arrangements. The true intention of the Contracting Parties was that the remuneration received by the Player during the loan periods would cover any future credits that the Player would be entitled to receive from the Employer Contract for that same season.

(vii) The Player was not entitled to receive a payment (bonus) of EUR 450,000 on 30 August 2021. The EUR 450,000 payment was a loyalty bonus with the aim to compensate the Player for his loyalty in fulfilling the Employment Contract. This bonus was an incentive payment for the Player to remain with the Club. It was not an unconditional payment. This amount was to be paid at the beginning of each season. This was the will of the Contracting Parties. The Player did not play in the 2021/2022 season and for this reason, was not entitled to receive this bonus.

(viii) The impact of COVID-19 pandemic affected the Club and the principle of clausula rebus sic stantibus is applicable. The employment relationship was severely affected by the COVID-19 pandemic and considering these circumstances the Player could not terminate the Employment Contract based on the alleged non-payment of his outstanding salaries.

(ix) In any event, even if the Player had any reason to claim any outstanding salaries, the Player failed to comply with the regulatory requirements imposed. The Player did not correctly put the Club in default because it gave the Club only 10 days to comply with its alleged financial obligations. Article 14bis (1) of the RSTP provides for a period of “at least” 15 days' notice and the Player only granted a period of 10 days. This provision is mandatory, and the Contracting Parties could not agree on a shorter period. Additionally, it should also be taken into consideration that the 2020/2021 season did not end until October 2021 or at the latest at the end of September 2021. Therefore, as of 26 October 2021, two of the Player’s salaries were not overdue.

(x) The Player had the duty to mitigate his damages. FIFA DRC has “(…) solely relied on the statements of Alianza Lima according to which the [Player] allegedly was entitled to approximately USD 19,045.45 per month (i.e USD 3,000 as salary and an average of USD 16,045.45 as fixed payment)”. The alleged salary of “(…) USD 3,000 and a signing fee of USD 16,045.45 (as

monthly average)” cannot be accepted. “At least the [Player] could have earned USD 64,181.82 per month at Alianza Lima. Together with the monthly average signing fee this makes a total of USD 80,227.27. For five months (February until June 2022), the [Player] could have mitigated his damage about USD 401,136.35. Thus, even if the [Club] would have to pay an additional compensation of three-monthly salaries (…) which is contested, the awarded amount should be at least USD 138,636.35 less (…)”. The residual value of the Employment Contract has to be mitigated with the correct amounts received by the Player during the remaining period of the Employment Contract.

(xi) The Player breached the Employment Contract and must compensate the Club. The Club is entitled to a compensation equal to one-quarter of the employee’s monthly salary of EUR 87,500 (EUR 21,875, plus 5% from 27 October 2021) and the percentage of the non-amortized Transfer Fee (EUR 4,350,000) which was planned to be amortized within 36 months (EUR 120,833.33 per month). Since the Player left the Club eight months before the expiry of the Employment Contract, the amount not amortized, that the Player shall compensate, is EUR 966,666.67, plus 5% interest from 27 October 2021.

(B) The First Respondent’s Submissions

68. In the Player’s Answer, the First Respondent seeks the following reliefs from the CAS:

“To dismiss the appeal, confirming the decision of DRC and to order payment by the Appellant of all the costs of the arbitration as well as legal costs suffered by the Player”.

69. The First Respondent advanced the following grounds:

(i) The Employment Contract was reinstated on 1 July 2021 after the termination of the Sub-Loan Agreement. In fact, the Player returned to Cairo on this date, and it was reintegrated to the Club’s team. The Club provided the Player the flight ticket for his return to Cairo;

(ii) The Player’s remuneration values were due since the Employment Contract was reinstated (i.e. 1 July 2021). The payment of the lump sum of EUR 450,000 is a signing bonus, a not a loyalty bonus. This type of bonus is a usual practice in the football world, often paid at the beginning of each season;

(iii) The Employment Contract sets forth the remuneration values and payment conditions referring to specific dates and not seasons. The Player’s salary package included both the monthly salaries of EUR 87,500 and the lump sum of EUR 450,000. There is also no mention of any “loyalty bonus” or an obligation to return such bonus in case the Player leaves the Club;

(iv) The financial implications of COVID-19 on the Club are not a valid reason to justify the non-fulfilment of the Club’s pecuniary obligations. The Club’s behaviour during the transfer window reveals that the circumstances associated with the COVID-19 pandemic

did not drastically affect the Club's finances. During the pandemic period the Club made significant investments in signing new players, increasing its debt.

(C) The Second Respondent’s Submissions

70. In the FIFA’s Answer, the Second Respondent seeks the following reliefs from the CAS:

“(…) FIFA respectfully requests CAS to issue an award on the merits:

(a) rejecting the reliefs sought by the Appellant and dismissing the appeal in full;

(b) confirming the Appealed Decision;

(c) ordering the Appellant to bear the full costs of these arbitration proceedings; and

(d) ordering the Appellant to make a contribution of FIFA’s legal costs”.

71. The Second Respondent advanced the following grounds in support of its appeal:

(i) The Appellant has not explained why FIFA was called as a party to this arbitration proceedings;

(ii) FIFA has no standing to be sued as (i) this case exclusively related to a horizontal dispute between Pyramids and the Player; (ii) none of the Appellant’s requests for relief concerns FIFA; and (iii) there is no scope of discretion for the FIFA DRC with regards to the imposition of the consequences in case of non-compliance provided for Article 25 RSTP;

(iii) The FIFA RSTP is silent about the FIFA’s standing to be sued in an appeal against a FIFA decision and Swiss law is only applicable on a subsidiary basis;

(iv) FIFA pointed out, among others, the following CAS jurisprudence:

(a) CAS 2008/A/1518 para. 24 and CAS 2015/A/4335 para. 49 ruling that Article 75 of the Swiss Civil Code (the “SCC”) “(…) does not apply indiscriminately to every decision made by an association. Instead, it must be determined in every case whether the appeal against a certain decision by an association falls under Art. 75 Swiss Civil Code, i.e. whether the prerequisites of Art. 75 Swiss Civil Code are met in a specific individual case. If, for example, there is a dispute between two association members (e.g. regarding the payment for the transfer of a football player) and the association decides that a club (member) has to pay the other a certain sum, this is not a decision which ca be subject to an appeal within the meaning of Art. 75 Swiss Civil Code. (…) A dispute between two football clubs, i.e. two association members, therefore, is not a dispute which can be appealed against under Art. 75 Swiss Civil Code. The sports association taking a decision is not doing so in a matter of its own, i.e. in a matter which concerns its relationship to one of its members, rather it is acting as a kind of first decision-making instance, as desired and accepted by the parties”.

(b) CAS 2015/A/4000 para. 75 “According to the well-established CAS jurisprudence (…), FIFA has no standing to be sued where it is only involved in the dispute between two parties (such as a player and a club as in the present case) merely as the adjudicating body having issued the appealed decision and the parties cannot bring an actual claim against FIFA”.

(v) The FIFA Tribunals offer a dispute resolution system where FIFA is not a party but a neural entity that is called to settle a strict horizontal dispute between its indirect members in a matter that does not concerns FIFA’s relationship with one of those indirect members;

(vi) The imposition of the fixed sanctions in accordance with Article 24 RSTP is dependent on the outcome of the horizontal dispute and the appealed decision was not (directly) one of disciplinary nature;

(vii) The mechanism set out in Article 24 RSTP applies to all employment-related disputed between a club and a player and disputes between clubs as of 1 June 2018, as well as to disputes related to the solidarity mechanism and training compensation and this mechanism cannot affect the FIFA’s lack of standing to be sued in any way as this case remains a purely contractual dispute. Furthermore, the registration of the decided sanction(s) will become applicable only if the due amounts are not paid within the 45-day time period and subject to the creditor requesting the implementation of the consequences after having duly complied with the pertinent formal requirement and provides the debtor with the relevant bank details. The sanction is not imposed automatically and depends on a serious of circumstances which at the moment that the decision is issued are inexistent. Moreover, the debtor has always the possibility to appeal that future FIFA decision which effectively implements the consequences of Article 24 RSTP before CAS;

(viii) On a subsidiary basis, FIFA states that the Appealed Decision is correct, fully justified and should be entirely upheld by the CAS.