Talaea El Gaish Club v. Dodzi Dogbé

II. FACTUAL BACKGROUND — A. Background Facts

3. Below is a summary of the relevant facts and allegations based on the Parties’ written submissions, pleadings and evidence adduced at the hearing. Additional facts and allegations

found in the Parties’ written submissions, pleadings and evidence may be set out, where relevant, in connection with the legal discussion that follows. While the Sole Arbitrator has considered all the facts, allegations, legal arguments and evidence submitted by the Parties in the present proceedings, he refers in his Award only to the submissions and evidence he considers necessary to explain his reasoning.

4. On 19 July 2008, the Club and the Player concluded their first employment contract valid from season 2008/2009 until season 2009/2010.

5. Notwithstanding the allegations made by the Appellant that the Player was repeatedly absent from Egypt without authority or permission of the Appellant on diverse dates between 2008 and 2010, on 15 May 2010, the Club and the Player concluded their second employment contract (hereinafter the “Contract”) valid for four (4) seasons starting in the 2009/2010 season and ending after the 2012/2013 season. It was also alleged by the Appellant that in addition to the Contract, the Player signed a document in which he acknowledged that he “will never travel without obtaining permission from the club” and that he will “accept any money punishment imposed against me [the Player] if I [the Player] travel without permission from the club”. The Player denies signing this document.

6. In accordance with Article 3 of the Contract, the Player was entitled to receive a salary for a total amount of USD 691,000, distributed along the 4 seasons as follows:

• Season 2009/2010: USD 1,000

• Season 2010/2011: USD 210,000

• Season 2011/2012: USD 230,000

• Season 2012/2013: USD 250,000

7. The preliminary recitals to the Contract confirm that: “The two parties declare their capacity to contract and they have read the regulation of player affairs which is valid during the signing of this contract and this regulation supersedes any other considered as part of this contract and complement for it”.

8. Article 10 of the Contract provides the following: “The club has the right to inform the player in writing to terminate the contract between them at the end of the season during its validity within fifteen days after last national official match for the club. In this case the player does not deserve any compensation for the rest of the period of the contract. The player will receive his financial dues up to the end of the contract”.

9. During the 2010/2011 season, it is alleged by the Appellant, that again the Player repeatedly left Egypt without prior authorisation or permission from the Club and in consequence missed matches and training sessions thereby causing damage and loss to the Club.

10. By letter dated 12 July 2011, the Club informed the Player that it intended to terminate the Contract at the end of the 2010/2011 season. The letter reads as follows:

“A l’intention de del’équipe [sic] d’etraiȋnement [sic] du club Talaa El Gaich de finir votre contat [sic], le coseil general [sic] du club a décidé de vous informer que votre contrat résiliera fin de cette saison 2010-2011.

On vous remercie infiniment pour tous les efforts que vous avez déployés pendant votre séjour au club.

Et par consequent [sic], on vous informe aussi que vous avez librement le choix de contracter une autre équipe sands [sic] aucune restriction”.

B. Proceedings before FIFA

11. On 26 September 2011, the Player lodged a claim against the Club before the FIFA Dispute Resolution Chamber (hereinafter the “FIFA DRC”), seeking compensation for the premature termination of the Contract by the Club, in the total sum of USD 800,000, representing USD 480,000 as the remaining sum due to the Player under the Contract, USD 300,000 as damages and USD 20,000 for legal expenses.

12. On 27 February 2014, the FIFA DRC issued a decision (hereinafter the “Appealed Decision”), inter alia, on the following grounds:

- The reasons cited by the Club for termination of the Contract did not correlate to the Player’s alleged unauthorized absences which could not be considered as a just cause to terminate the Contract;

- Article 10 of the Contract is potestative in nature and is to the unilateral benefit of the Respondent only. The members of the Chamber agreed that the decision to terminate was left fully to the discretion of the Club and that Article 10 of the Contract did not constitute a reason that can be validly invoked, nor a legal basis to unilaterally terminate the Contract and that accordingly the Club had terminated the Contract without just cause;

- Taking into consideration Article 17 para. 1 of the FIFA Regulations on the Status and Transfer of Players, the Claimant is entitled to receive from the Respondent compensation for breach of contract. The Chamber confirmed that in accordance with the terms of Article 17 para.1, 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 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.

- In the absence of any agreed liquidated damages clause in the Contract, the Chamber decided that the Respondent must pay the amount of USD 407,000 to the Claimant, being USD 480,000 due to the Player had the Contract been executed until its expiry date, mitigated with USD 73,000 as the remuneration of the Player under a new contract of

employment with the Thai club Than Hoa. The Chamber rejected the Player’s claim for damages due ‘to the lack of legal basis’.

On the basis of the foregoing, the FIFA DRC decided the following:

“1. The claim of the Claimant, Dodzi Dogbé, is partially accepted.

2. The Respondent, Talaea El Gaish, has to pay to the Claimant compensation for breach of contract in the amount of USD 407.000, within 30 days as from the date of notification of this decision.

3. In the event that the above-mentioned amount is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. Any further claim lodged by the Claimant is rejected”.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

13. On 24 July 2014, the Appellant filed a Statement of Appeal with the Court of Arbitration for Sport (hereinafter the “CAS”), against the Appealed Decision pursuant to Articles R47 and R48 of the Code of Sports–related Arbitration (“the Code”). In its Statement of Appeal, the Appellant requested that a Sole Arbitrator determine the appeal matter and further sought a stay of the Appealed Decision.

14. On 30 July 2014, the CAS Court Office notified the Appellant that according to CAS jurisprudence, a decision of a financial nature issued by a private Swiss association is not enforceable while under appeal and that it may therefore not be stayed and that an application in that respect - being moot – would in principle be dismissed.

15. On 2 August 2014, the Appellant informed the CAS Court Office that it withdrew its application for a stay of the Appealed Decision.

16. On 4 August 2014, the Respondent informed the CAS Court Office that he had no objection to the nomination of a Sole Arbitrator and to English being the official language of the proceedings.

17. On 5 August 2014, the Appellant filed with the CAS Court Office its exhibits and confirmed that its Statement of Appeal and its complementary attachments were to be considered as the Appeal Brief.

18. On 11 August 2014, the CAS Court Office notified the Respondent that pursuant to Article R55 of the Code the Respondent should submit an answer within twenty days of receipt of its letter.

19. On the same day, FIFA informed the CAS Court Office that it renounced its right to request its possible intervention in the present arbitration proceedings.

20. By letter dated 20 August 2014, the Respondent requested that the CAS Court Office fix the time limit for filing the Answer, after payment by the Appellant of the advance of costs according to Article R55 para. 3 of the Code.

21. On 21 August 2014, the CAS Court Office notified the Parties that the time limit for filing the Answer set out in its letter of 11 August 2014 was set aside and that a new time limit would be fixed upon the Appellant’s payment of its share of the advance of costs.

22. By letter dated 29 August 2014, the CAS Court Office notified the Respondent that pursuant to Article R55 of the Code the Respondent should submit an answer within twenty days of receipt of its letter.

23. On 1 September 2014, the CAS Court Office served Notice of Formation of a Panel pursuant to Article R54 of the Code and informed the Parties on behalf of the President of the CAS Appeals Arbitration Division that Mr Stuart McInnes, Solicitor in London, United Kingdom, was appointed as Sole Arbitrator in this case.

24. On 17 September 2014, the Respondent filed his Answer with the CAS Court Office.

25. On 16 October 2014, the Parties were informed that a hearing would be held in the present dispute on 18 December 2014.

26. On 19 and 24 November 2014, the Respondent and the Appellant respectively signed the Order of Procedure.

27. On 18 December 2014, a hearing was held at the CAS Court Office in Lausanne, Switzerland (hereinafter referred to as the “Hearing”).

IV. HEARING

28. The following persons attended the Hearing.

For the Appellant: Mr Hisham Hassan Abdrabo, attorney-at-law Mr AbdulRahman Magdy Tawfiq,

For the Respondent: Mr Dodzi Dogbé Mr Redouane Mahrach, attorney-at-law.

29. Mr Dodzi Dogbé was examined and cross-examined by both Parties’ counsel and by the Sole Arbitrator.

30. The Parties were afforded the opportunity to present their cases, submit their arguments and to answer questions asked by the Sole Arbitrator.

31. At the end of the Hearing the Parties explicitly agreed that they had no objection to the constitution of the Panel and that their right to be heard and to be treated equally in the arbitration proceedings had been fully observed.

V. SUBMISSIONS OF THE PARTIES

32. The following outline of the Parties’ submissions is illustrative only and does not necessarily comprise every contention put forward by the Parties. The Sole Arbitrator has, however, carefully considered all the submissions made by the Parties, even if no explicit reference has been made in what immediately follows.

A. The Appellant’s submissions

33. The Appellant’s submissions, in essence, may be summarised as follows:

i. The termination of the Contract correlated with the unauthorized absences of the Player. The last absence was made in May 2011 and the actual termination notice was made on 12 July 2011, i.e. the next day following the date of the last official match of the Club in the season on 11 July 2011. The FIFA DRC erred in finding that the Player’s last absence was in December 2010.

ii. An identical version of Article 10 of the Contract was also included in the first employment contract between the Club and the Player. Both contracts were accepted and freely signed by the Player who did not express any objection to the drafting of the article in the first and/or the second employment contract. Thus the FIFA DRC erred in its finding that Article 10 of the Contract is for the unilateral benefit of the Club alone. It is a bilateral clause as both Parties accepted it in the Contract.

iii. Article 10 of the Contract was not drafted by the Club but by the Egyptian Football Association in its template employment contract distributed to all Egyptian clubs. The clause reflects the drafting of Article 6 of the Egyptian Football Association Regulations of Player’s Affairs. The inclusion of this clause is mandatory and registration of the Player would not have been possible had the clause not been included in the Contract. Both Parties expressly agreed to the inclusion of the clause as is evidenced by the preliminary recital to the Contract which confirms that the regulations form part of the Contract and supersede its provisions.

iv. Through his unauthorized absences, the Player breached the following provisions:

i) Article 6 (2) of the Contract, which stipulates that the Player undertakes to “attend all the practices and friendly and official matches of the Club”; and

ii) Article 6 (12) of the Contract, which stipulates that the Player undertakes to “attend all the club’s events”; and

iii) his commitment to “never travel without obtaining permission from the club”.

v. Such breaches of the Player’s contractual obligations had a deleterious effect on the Player’s physical fitness and an adverse impact on the overall performance of the team. The Player’s frequent unauthorized absences amounting to 183 days after signature of the Contract constituted just cause for the Club to implement the termination provisions of Article 10 of the Contract.

vi. The Club applied Article 6 (14) of the Regulations of the Player’s Affairs of the Egyptian Football Association of November 2005, which are incorporated into the recitals to the Contract signed by the Player and the Club and which stipulates that:

“If a club terminates a contract concluded with one of its players during or after the season,

1) the player shall receive all his financial dues specified in the contract for the rest of the season, a termination.

2) a termination notice shall be sent to the player within 15 days following the date of the last official match of the club, otherwise, the player shall be entitled to receive 50% of the financial dues specified in the contract until the date of the next registration, or 50% of the advanced payment if the player transferred to another club before the date of the next registration”.

34. The Appellant submitted the following request for relief:

- “To consider that the Player did breach his contractual obligations with the Club as he made many unauthorized travels and long absences and harmed the overall performance of the football team;

- To consider Article 10 of the employment contract bilateral;

- To consider that the Player does not deserve any compensation because the termination of the Contract was justified by the Player’s breach of his contractual obligations, article 10 of the Contract and article 6, para. 14 of the Regulations of Player’s Affairs of the Egyptian Football Association;

- To compensate the Club with USD 1.000 for every day of the Player’s absence during season 2010/2011 (Total of 183 days x USD 1000/day = USD 183.000), as stipulated and confirmed in the Player’s own acknowledgment;

- To instruct the Player to pay USD 20.000 for the legal expenses”.

B. The Respondent’s submissions

35. The Respondent’s submissions, in essence, may be summarised as follows:

i. According to Article 13 of the FIFA Regulations on the Status and Transfer of Players (RSTP), which stipulates that:

“A contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement”; and

Article 14 RSTP, which stipulates that

“A contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sportive sanctions) where there is just cause”; and

Article 337 of the Swiss Code of Obligations, which stipulates that

“The employer and the employee may terminate immediately the contract at any time for just cause; the party which terminates the contract must immediately justify the reasons of its decisions in writing if the other party asks for it”,

a termination notice cannot be given without just cause.

ii. The letter dated 12 July 2011 by which the Appellant terminated the Respondent’s Contract provided as follows:

“The board of Talaea El Gaish club has decided to notify you of terminating your contract by the end of the season 2010/2011 upon request of the team training staff since there is no need for your presence with the team as of the end of the season 2010/2011.

We would like to thank you for the time you have spent with us”.

The Appellant did not cite any reason for terminating the Respondent’s Contract save that it was terminated at the request of the training staff, and did not take exception to the conduct or behaviour of the Respondent during his time with the Club.

iii. The Appellant terminated the Contract by purporting to exercise Article 10 of the Contract, which is neither acceptable nor legally valid as determined in the Appealed Decision, which follows and upholds established FIFA jurisprudence (cf. DRC 07/05/2008, DRC 28/03/2008 and DRC 18/03/2010) and CAS jurisprudence (cf. CAS 2005/A/983 & 984 and CAS 2008/A/1517). The clause is contrary to the regulations of FIFA and is therefore illegal and void. The Appellant is not at liberty to unilaterally terminate the Contract at will and can only do so without consequence if there is just cause.

iv. It was only ex post facto that the Appellant sought to justify the termination as with just cause, by virtue of unauthorized absences of the Player. The terms upon which a party to a contract is entitled to invoke valid early termination provisions are limited and restrictively defined. The established criteria presuppose that:

a) a breach must be of a certain severity before termination should be permitted; and

b) if there are alternative and more lenient measures which can be implemented to ensure compliance with contractual duties, such measures must be employed before terminating an employment contract (cf. DRC 13/10/2010).

It is a necessary application of the principle of good faith that a prior warning be given of the ultimate consequences of the Player’s actions should they be repeated or continued.

v. The schedule of the alleged unauthorized travel adduced in evidence before the CAS, by the Appellant, is firstly, illustrative of the Club’s interference with the Player’s free movement and violates the fundamental principles of freedom of movement and privacy and secondly, is materially different to that produced before the FIFA DRC and should not be relied upon. The Respondent maintained that he had not travelled to Italy since 2008, had never travelled to Germany or Austria and had only visited Switzerland after the Appellant had terminated the Contract.

vi. There is insufficient and/or no proof that the absences of the Player were unauthorized and/or not legitimate. Moreover, of the absences relied upon by the Appellant, seven of the cited absences took place before May 2010, i.e. before the date upon which the Appellant decided to enter into the second contract with the Player. The absences were either authorized or justified as they correspond to periods in which the Parties were in dispute or in which the Player was injured and subject to medical supervision in France. Prior to termination of the Contract the Player was not subject to sanction or punishment by the Club for unauthorized absence.

vii. The Player participated in seven matches for the Appellant after the alleged unauthorized absence between 26 May 2011 and 29 May 2011.

36. The Respondent submitted the following request for relief:

- To confirm FIFA’s previous decision in all its dispositions;

- To dismiss the appeal of the Talaea Al Gaish;

- To order the Appellant to pay to the Respondent, in addition with the USD 407.000 for breach of contract without just cause with interests of 5% from 9 August 2014, legal expenses exposed by the Respondent which represent EUR 35.332 and also procedural costs.