Shiza Yahya, Simba SC v. Pharco FC

V. JURISDICTION

54. The jurisdiction of CAS derives from Article 58(1) FIFA Statutes (June 2019 Edition), as it determines that “[a]ppeals against final decisions passed by FIFA’s legal bodies and against decisions passed by confederations, member associations or leagues shall be lodged with CAS within 21 days of receipt of the decision in question” and Article R47 CAS Code. The jurisdiction of CAS is not contested and is further confirmed by the Order of Procedure duly signed by the Parties.

55. It follows that CAS has jurisdiction to adjudicate and decide on the present dispute.

VI. ADMISSIBILITY

56. The appeal was filed within the deadline of 21 days set by Article 58(1) FIFA Statutes. The appeal complied with all other requirements of Article R48 CAS Code, including the payment of the CAS Court Office fee.

57. It follows that the appeal is admissible.

VII. APPLICABLE LAW

58. The Appellants submit that, in accordance with Article R58 CAS Code and Article 57(2) FIFA Statutes, the CAS should apply the various regulations of FIFA and, additionally, Swiss law.

59. Pharco did not submit any position in respect of the law to be applied.

60. Article R58 CAS Code provides as follows:

“The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”.

61. Article 57(2) FIFA Statutes provides the following:

“The provisions of the CAS Code of Sports-related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law”.

62. The Sole Arbitrator finds that the regulations of FIFA are primarily applicable, in particular the FIFA Regulations on the Status and Transfer of Player (edition June 2019 – the “FIFA RSTP”) and, if necessary, additionally, Swiss law.

VIII. MERITS — A. The Main Issues

63. The main issues to be resolved by the Sole Arbitrator are:

i. When was the Employment Contract terminated and by whom?

ii. Was there just cause for the termination of the Employment Contract?

iii. What are the consequences thereof?

i. When was the Employment Contract terminated and by whom?

64. The Sole Arbitrator notes that there is no termination letter on file, by means of which either the Player or Pharco terminated the Employment Contract. It is nonetheless clear that the employment relationship between the Player and Pharco came to an end.

65. The Player maintains that he terminated the Employment Contract by means of a termination letter dated 15 January 2020.

66. The Sole Arbitrator finds that the Player’s letter dated 15 January 2020 is not a termination letter, as it was not addressed to Pharco, but to FIFA. There is no evidence on file based on which it can be concluded that the Player’s letter was brought to the attention of Pharco at the relevant moment in time.

67. Nonetheless, the Sole Arbitrator finds that the Employment Contract was implicitly terminated by the Player by signing a new employment contract with Simba while his Employment Contract with Pharco had not yet expired.

68. Article 5(2) FIFA RSTP provides as follows:

“A player may only be registered with one club at a time”.

69. Furthermore, Article 18(5) FIFA RSTP provides as follows:

“If a professional enters into more than one contract covering the same period, the provisions set forth in Chapter IV shall apply”.

70. Chapter IV of the FIFA RSTP comprises Articles 13 until 18 FIFA RSTP, dealing with the termination of employment contracts.

71. The Player does not deny to have concluded an employment contract with Simba on 20 January 2020, but he maintains that he was entitled to do so, because he had just cause to terminate his Employment Contract with Pharco.

72. The arguments of the Player with respect to the termination of his Employment Contract with Pharco will be addressed in more detail below, but the Sole Arbitrator finds that the above reasoning warrants the conclusion that the Employment Contract was implicitly terminated by the Player on 20 January 2020 by signing an employment contract with Simba on such date.

ii. Did the Player terminate the Employment Contract with or without just cause?

73. Given that the Player is held to have terminated the Employment Contract with Pharco on 20 January 2020, the Player carries the burden of proof to establish that he had just cause to do so at such moment in time.

74. In this respect, the Sole Arbitrator considers it relevant which arguments the Player invoked in his letter dated 15 January 2020, even if such letter was not delivered to Pharco, as it is contemporaneous evidence of the Player’s position at the relevant point in time.

75. The Player’s letter dated 15 January 2020 provides, inter alia, as follows:

“I would like to inform you that, I was registered as a player to Pharco FC of Egypt for 4 years from 2019 to 2022 but they never pay me a signing fee nor salary. They did not pay me salary or Seven

months (7) now. They signed me various dubious contracts with Arabic language that I don’t understand without even giving me a copy.

I would like to request your good office to help me on solving this issue so that I can proceed with my career of playing football. I need to go back to my former club Simba Sports Club of Tanzania that I can continue with my carrier”.

76. The Sole Arbitrator finds that three reasons for termination can be derived from this letter:

1. Pharco’s failure to pay salary to the Player for 7 months;

2. Pharco’s signing of “various dubious contracts with Arabic language” with him that he did not understand;

3. A pressing need for the Player to return to Simba.

77. Before addressing these arguments in turn below, the Sole Arbitrator wishes to set out the relevant regulatory framework against which the Player’s allegations are to be assessed.

a. The applicable regulatory framework

78. Article 14 FIFA RSTP provides as follows:

“1. A contract may be terminated by either party without consequences of any kind (either payment of compensation or imposition of sporting sanctions) where there is just cause.

2. Any abusive conduct of a party aiming at forcing the counterparty to terminate or change the terms of the contract shall entitle the counterparty (a player or a club) to terminate the contract with just cause”.

79. Article 14bis(1) FIFA RSTP provides the following:

“In the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s). Alternative provisions in contracts existing at the time of this provision coming into force may be considered”.

80. The Sole Arbitrator observes that the FIFA Commentary on the Regulations for the Status and Transfer of Players (edition 2005 - the “2005 Commentary”) provides general guidance as to when an employment contract is terminated with just cause in the context of Article 14(1) FIFA RSTP:

“The definition of just cause and whether just cause exists shall be established in accordance with the merits of each particular case. In fact, behaviour that is in violation of the terms of an employment contract still cannot justify the termination of a contract for just cause. However, should the violation persist for a

long time or should many violations be cumulated over a certain period of time, then it is most probable that the breach of contract has reached such a level that the party suffering the breach is entitled to terminate the contract unilaterally”.

81. This view is not fundamentally different from the interpretation set forth in the recently issued FIFA Commentary on the Regulations on the Status and Transfer of Players (edition 2021 – the “2021 Commentary”), which provides, inter alia, as follows:

“Whether there is just cause for the early termination of a contract signed between a professional player and a club must be assessed in consideration of all the specific circumstances of the individual case.

[…]

In several awards, CAS has drawn a parallel between the concept of “just cause” as defined in article 14 of the Regulations and the concept of “good cause” in article 337(2) of the Swiss Code of Obligations (SCO). Good cause (and thus just cause) to lawfully terminate an employment contract exists when the fundamental terms and conditions which formed the basis of the contractual arrangement are no longer respected by one of the parties.

When required to assess whether a valid reason existed for a unilateral contract termination, the following principles should be applied, while considering the specific circumstances of each individual matter:

- Only a sufficiently serious breach of contractual obligations by one party to the contract qualifies as just cause of the other party to terminate the contract.

- In principle, the breach is considered sufficiently serious when there are objective circumstances that would render it unreasonable to expect the employment relationship between the parties to continue, such as a serious breach of trust.

- The termination of a contract should always be an action of last resort (an “ultima ratio” action)”.

82. In this regard, the Sole Arbitrator also notes that in CAS 2006/A/1180, a CAS panel stated the following:

“The RSTP 2001 do not define when there is “just cause” to terminate a contract. In its established legal practice, CAS has therefore referred to Swiss law in order to determine the purport of the term “just cause”. Pursuant to this, an employment contract which has been concluded for a fixed term, can only be terminated prior to expiry of the term of the contract if there are “valid reasons” or if the parties reach mutual agreement on the end of the contract (see also ATF 110 I 167; WYLER R., Droit du travail, Berne 2002, p. 323 and STAEHELIN/VISCHER, Kommentar zum Schweizerischen Zivilgesetzbuch, Obligationenrecht, Teilband V 2c, Der Arbeitsvertrag, Art. 319-362 OR, Zurich 1996, marg. no. 17 ad Art. 334, p. 479). In this regard Art. 337 para. 2 of the Code of Obligations (CO) states – according to the translation into English by the Swiss-American Chamber of Commerce: “A valid reason is considered to be, in particular, any circumstances under which, if existing, the terminating party can in good faith not be expected to continue the employment relationship”. According to Swiss case law, whether there is “good cause” for termination of a contract depends on the overall circumstances of the case (ATF 108 II 444, 446; ATF 2 February 2001,4C.240/2000 no. 3 b aa). Particular importance is thereby

attached to the nature of the breach of obligation. The Swiss Federal Supreme Court has ruled that the existence of a valid reason has to be admitted when the essential conditions, whether of an objective or personal nature, under which the contract was concluded are no longer present (ATF 101 Ia 545). In other words, it may be deemed to be a case for applying the clausula rebus sic stantibus (ATF 5 May 2003,4C.67/2003 no. 2). According to Swiss law, only a breach which is of a certain severity justifies termination of a contract without prior warning (ATF 127 III 153; ATF 121 III 467; ATF 117 II 560; ATF 116 II 145 and ATF 108 II 444, 446). In principle, the breach is considered to be of a certain severity when there are objective criteria which do not reasonably permit an expectation that the employment relationship between the parties be continued, such as a serious breach of confidence (ATF 2 February 2001,4C.240/2000 no. 3 b aa; ATF 5 May 2003,4C.67/2003 no. 2; WYLER R., op. cit., p. 364 and TERCIER P., Les contrats spéciaux, Zurich et al. 2003, no. 3402, p. 496). Pursuant to the established case law of the Swiss Federal Supreme Court, early termination for valid reasons must, however, be restrictively admitted (ATF 2 February 2001,4C.240/2000 no. 3 b aa; ATF 127 III 351; WYLER R., op. cit., p. 364 and TERCIER P., op. cit., no. 3394, p. 495)” (CAS 2006/A/1180, para. 25 of the abstract published on the CAS website).

83. The Sole Arbitrator fully adheres to such legal framework, which is still applied in recent CAS jurisprudence (cf. CAS 2019/A/6171 & 6175, para. 93; CAS 2017/A/5312, para. 82; CAS 2016/A/4846, para. 175 of the abstract published on the CAS website), and will therefore examine whether Pharco’s conduct was of such a nature that the Player could no longer be reasonably expected to continue the employment relationship with Pharco.

b. Pharco’s alleged failure to pay salary to the Player

84. The Sole Arbitrator notes that it remained undisputed that the Player was out on loan with Alexandria Sporting Club from September to December 2019. On this basis, it is to be presumed that Alexandria Sporting Club was required to pay salary to the Player during the period of the loan rather than Pharco. This is acknowledged by the Player insofar as he indicated in his written submission that “the agreed salary of the Player was not paid by Alexandria Sporting Club” and confirmed by Pharco’s statement that it had no overdue salaries towards the Player.

85. While Pharco appears to maintain that it paid several amounts to the Player, it did not provide evidence of any such payments. However, the Sole Arbitrator ultimately does not consider this to be pertinent, because he finds that the Player in any event did not establish that he was entitled to seven months’ salary from Pharco at the time of termination.

86. The Player also did not provide evidence of having issued a default notice to Pharco with respect to the alleged outstanding salary. As highlighted in Article 14bis(1) FIFA RSTP, issuing a default notice is a mandatory prerequisite for terminating an employment contract for outstanding salaries. In the absence of a default notice, Pharco was not provided with an opportunity to cure its alleged default. This is especially relevant in this case, given that it was apparently the primary responsibility of Alexandria Sporting Club to pay the Player’s salary, and not of Pharco.

87. The Sole Arbitrator also observes that in principle, according to CAS jurisprudence, and in accordance with Swiss law (ATF 127 III 153; ATF 121 III 467; ATF 117 II 560; ATF 116 II 145 and ATF 108 II 444, 446), for a party to be allowed to validly terminate an employment contract with immediate effect, it must have warned the other party, in order for the latter to have the chance, if it deemed the complaint legitimate, to comply with its obligations (CAS 2018/A/6029, para. 98, from the abstract as published on the CAS website, with further references to CAS 2016/A/4884; CAS 2015/A/4327; CAS

88. Consequently, the Sole Arbitrator finds that the alleged outstanding salaries did not provide just cause to the Player to terminate the Employment Contract.

c. Pharco’s signing of “various dubious contracts with Arabic language” with the Player that he did not understand

89. The Sole Arbitrator finds that the Player’s reasoning in this respect is somewhat unclear. The Sole Arbitrator understands the core of the Player’s argument to be that he signed a blank employment contract, that Pharco promised the Player that it would fill out the terms in accordance with the terms of the Offer, but that Pharco did not keep its promise and filled out terms that were less favourable to the Player and did not register the Employment Contract with the EFA.

90. This, however, does not explain why the Player referred to “dubious contracts with Arabic language” in his termination letter.

91. Pharco, by means of the testimony of Mr Bergas, Pharco’s CEO, at the hearing, denied that the Player signed a blank employment contract.

92. The Sole Arbitrator finds that the Player in any event did not prove that he was somehow pressured or tricked into signing a blank employment contract, as a consequence of which it is to be assumed that he did so voluntarily.

93. The Player’s accusation that Pharco forged the Employment Contract by adding financial terms that were not in accordance with the Offer and their alleged oral agreement requires evidence. Forgery is a serious allegation with potential criminal law repercussions.

94. However, even accepting the Player’s argument that he signed a blank employment contract, in doing so, he gave Pharco a free pass to fill out the terms of the employment to their liking and, in the absence of evidence that the terms would reflect the terms set forth in the Offer, took the risk for granted that the terms would be less favourable than those set forth in the Offer.

95. The Player maintains that he was not provided with a copy of the Employment Contract, but there is also no evidence on file establishing that the Player asked Pharco for a copy.

96. As to the Player’s argument that the Employment Contract was never registered with the EFA, this allegation cannot be correct, as, when Simba applied for an ITC from the EFA, the EFA objected by arguing that the Player was still registered with the EFA. Accordingly, the Player’s Employment Contract had apparently been registered with the EFA by Pharco.

97. The Sole Arbitrator notes that, according to the Player, the value of the Offer of USD 435,000 differs significantly from the value of the Employment Contract of EGP 600,000 (approx. USD 38,000) and that the Player would never have accepted such 90% reduction in salary within one day.

98. However, the Sole Arbitrator does not accept that Pharco offered the Player a salary of USD 435,000 in its Offer, but finds that the confusion derives from Pharco’s use of the symbol “$” in the Offer, without explicitly defining which currency the symbol represents. Whereas the Player interprets this as a symbol for United States Dollar (USD), Pharco interprets it as a symbol for Egyptian Pounds (EGP).

99. The Sole Arbitrator finds that it would make sense if Pharco’s financial offer of EGP 435,000 would be increased to EGP 600,000 the next day and that this would explain the confusion, whereas it would indeed be very odd for the Player to relinquish 90% of the Offer presented to him.

100. The Sole Arbitrator further notes that in the Transfer Agreement between Pharco and Simba explicit reference is made to “USD” and “United States Dollars”.

101. Furthermore, the Sole Arbitrator notes that the Player’s monthly salary with Simba is only USD 2,000 per month, i.e. USD 24,000 per year, which is in conformity with a value of the Employment Contract of EGP 600,000, while it would stand in stark contrast with a salary of USD 435,000 over a 4,5 year period with Pharco.

102. A salary of USD 435,000 over a 4,5 year period also appears to be very high in comparison with the transfer fee of USD 85,000 paid by Pharco to Simba for the services of the Player.

103. Also, whereas the Offer refers only to the symbol “$”, the Transfer Agreement between Pharco and Simba, which was undisputedly concluded in USD refers specifically to “Dollars”.

104. In any event, the Sole Arbitrator finds that there is insufficient evidence to determine that the Player did not voluntarily accept the terms of the Employment Contract, which contract specifically refers to salary being paid in Egyptian Pounds, which was apparently never objected to by the Player.

105. The Player relies on a photo allegedly taken by his former agent to corroborate the fact that he signed a blank employment contract. Accordingly, this agent attended the signing ceremony and could have testified about what had happened that day, but the Player did not call him as a witness. In fact, the Player himself also did not attend the hearing and therefore did not confirm the allegations made in his written submissions in testimony

before the Sole Arbitrator. In a situation where it is the word of the Player against the word of Mr Bergas of Pharco, who testified that the Player did not sign a blank employment contract, but only the official Employment Contract, and that the photo relied on by the Player was not taken at the premises of Pharco, the absence of any witnesses on the Player’s side does not speak in his favour.

106. In any event, given that upon conclusion of the Employment Contract, the Player was immediately loaned to Ennpi FC for the second half of the 2018/19 season, and to Alexandria Sporting Club from September to December 2019, the Player effectively never played for Pharco and it is not clear whether Pharco was ever required to pay salary to the Player. Accordingly, it is not established that the Player ever suffered any negative consequences from the alleged forgery of the Employment Contract.

107. Furthermore, and most relevant of all, the Player maintains in his written submission that Pharco had not adopted the financial terms set out in the Offer in the Employment Contract and that this “became evident only after having analysed the copy of the [Employment Contract], provided by [Pharco] before the FIFA DRC”. Accordingly, the Player found out that he had allegedly been deceived by Pharco only after he had already terminated the Employment Contract, as a consequence of which such alleged deception could not have been the reason of his termination.

108. Finally, insofar the Player maintains that the Offer was the relevant binding agreement between him and Pharco rather than the Employment Contract, because the former allegedly already contained all the essentialia negotii of the employment relationship, this argument is to be dismissed because the Offer was novated by the Employment Contract, as a consequence of which any potential binding legal force of the Offer was lost once the Player and Pharco agreed on the terms of the Employment Contract. In any event, in view of the above reasoning, the Sole Arbitrator finds that it appears that the value of the Employment Contract was higher than the value of the Offer so that the Player is not prejudiced by the Sole Arbitrator’s conclusion that the Offer is not the agreement governing the employment relationship between the Player and Pharco.

109. Consequently, the Sole Arbitrator finds that the alleged signing of “various contracts with Arabic language” with the Player that he did not understand did not provide just cause to the Player to terminate the Employment Contract.

d. A pressing need for the Player to return to Simba

110. As to the third reason invoked by the Player to legitimise the termination of the Employment Contract, the Sole Arbitrator finds that the Player failed to establish why there was a pressing need for him to return to Simba, and even less why this should allow him to terminate the Employment Contract with Pharco.

111. Based on the principle of pacta sunt servanda, the Player was bound by the terms of the Employment Contract and thereby committed himself to Pharco.

112. Consequently, the Sole Arbitrator finds that the Player did not establish a pressing need for him to return to Simba and why this would allow him to terminate the Employment Contract.

e. Violation of the Player’s personality rights

113. While the Player’s termination letter only referred to the aforementioned reasons to justify his termination of the Employment Contract, in the proceedings before the FIFA DRC and in the present proceedings before CAS, the Player invokes additional arguments as to why he was allowed to terminate the Employment Contract, related to his personality rights.

114. The Sole Arbitrator finds it doubtful whether such arguments are admissible, because the termination letter should in principle set out the reasons for termination.

115. This notwithstanding, and given that the termination letter was not effective anyway because it was never served on Pharco, the Sole Arbitrator addresses the additional arguments invoked by the Player as well.

116. The Player argues that, while Pharco was obliged to loan him to Enppi, the loan was prematurely cancelled by Pharco without any grounds, the Player was forced to go on loan to a third division club in Egypt, and Pharco never offered the Player to train and play with its squad, playing in the second division in Egypt.

117. The Sole Arbitrator notes that there is no evidence on record suggesting that the Pl ayer ever complained about the early termination of his loan to Enppi, that this in any event occurred at the end of the 2018/19 season, but that the Player only terminated his Employment Contract on 20 January 2020, i.e. six months later. The Sole Arbitrator finds that this is clearly insufficient to establish that the Player had just cause to terminate the Employment Contract. The termination of the loan was also primarily an issue in the contractual relationship between Enppi and the Player, not between Pharco and the Player. Furthermore, the Player’s argument that the loan to Enppi for one season and a half was an essential condition of his Employment Contract is to be dismissed, as Pharco by no means guaranteed that this loan period was guaranteed and that the Player would otherwise be entitled to terminate their employment relationship.

118. The Player also failed to prove that he was “forced” to go on loan to Alexandria Sporting Club. The Sole Arbitrator would at the very least expect the Player to testify about the alleged circumstances under which this took place, but the Player did not. In the absence of such evidence it is to be assumed that the Player voluntarily consented to being loaned to Alexandria Sporting Club.

119. Even if Pharco did not offer the Player to train and play with its first team, which is not evidenced in the first place, had the Player felt that he was entitled to participate, he should at least have issued a default notice prior to terminating his Employment Contract.

120. Consequently, also the aforementioned reasons are insufficient to conclude that the Player had just cause to terminate his Employment Contract.

f. Conclusion

121. Consequently, the Sole Arbitrator finds that the Player did not have just cause to terminate the Employment Contract on 20 January 2020.

122. As a consequence of such finding, and insofar as the Appellants’ request that the proceedings be referred back to the FIFA DRC to determine the compensation to be paid in case the Player had just cause to terminate the Employment Contract or that the Player’s claim for compensation for breach of contract by Pharco is inadmissible, such requests are moot as the Sole Arbitrator finds that the Player did not have just cause and is therefore in any event not entitled to receive compensation for breach of contract from Pharco.

iii. What are the consequences thereof?

123. The Player argues that Pharco was not interested in the Player and never contacted him or requested him to come back during and after his loan periods, and therefore, any compensation payable by the Player to Pharco could not be higher than USD 40,322, as any higher amount would lead to an unjust enrichment of Pharco, whereas Pharco fully agrees with the amount awarded to it by means of the Appealed Decision.

124. As the Sole Arbitrator finds that the Player had no just cause to terminate the Contract with Pharco, the Sole Arbitrator must now address the financial consequences of such termination.

a. Criteria set out in Article 17(1) FIFA RSTP and in CAS jurisprudence

125. In accordance with CAS jurisprudence, a party who terminates a contract with just cause pursuant to Article 14 FIFA RSTP is entitled to compensation from the breaching party pursuant to Article 17(1) RSTP, which determines the financial consequences of a premature termination of a contract (see e.g. CAS 2017/A/5180 at para. 84, CAS

126. Article 17(1) FIFA RSTP provides as follows:

“In all cases, the party in breach shall pay compensation. Subject to the provisions of article 20 and Annexe 4 in relation to training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, 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, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period”.

127. As repeatedly confirmed by CAS, the list of criteria set out in Article 17(1) FIFA RSTP is illustrative and not exhaustive. Other objective factors can and should be considered, such as the loss of a possible transfer fee and the replacement costs, provided that there exists a logical nexus between the breach and loss claimed (CAS 2010/A/2145, 2146 & 2147, at precedents also indicate that, in the analysis of the relevant criteria, the order by which those criteria are set forth by Article 17(1) FIFA RSTP is irrelevant and need not be exactly followed by the judging body (see CAS 2009/A/1880 & 1881 at para. 79).

128. The Sole Arbitrator further observes that, according to CAS jurisprudence, it is for the judging authority to carefully assess, on a case-by-case basis, all the factors and determine how much weight, if any, each of them should carry in calculating compensation under Article 17(1) FIFA RSTP (CAS 2008/A/1519 & 1520, at paras. 77 and 89; CAS 2010/A/2145, 2146, & 2147, at paras. 74 and 86). In particular, CAS precedents indicate that while each of the factors set out in Article 17(1) FIFA RSTP or in CAS jurisprudence may be relevant, any of them may be decisive on the facts of a particular case (CAS 2009/A/1880 & 1881, at para. 77). According to said CAS case law, while the judging authority has a “wide margin of appreciation” or a “considerable scope of discretion”, it must not set the amount of compensation in a fully arbitrary way, but rather in a fair and comprehensible manner (CAS 2009/A/1880 & 1881, at paras. 76 and 77; CAS 2008/A/1519 & 1520, at paras. 87 and 89). At the same time, as the CAS Code sets forth an adversarial rather than inquisitorial system of arbitral justice, a CAS panel has no duty to analyse and give weight to any specific factor listed in Article 17(1) FIFA RSTP or set out in the CAS jurisprudence if the parties do not actively substantiate their allegations with evidence and arguments based on such factor (CAS 2009/A/1880 & 1881, at para. 78).

129. The Sole Arbitrator also observes that there is an established consensus in CAS jurisprudence that the “positive interest” principle must apply in calculating compensation for an unjustified, unilateral termination of a contract under Article 17(1) FIFA RSTP (it has been applied, among other cases, in CAS 2008/A/1519 & 1520, CAS 2009/A/1880 & 1881, CAS 2013/A/3411, and CAS 2015/A/4046 & 4047). As aptly stated by another CAS panel, “given that the compensation to be granted derives from a breach or unjustified termination of a valid contract, it will be guided in calculating the compensation due by the principle of the so-called ‘positive interest’ or ‘expectation interest’… [and] accordingly… determin[e] an amount which shall basically put the injured party in the position that the same party would have had if no contractual breach had occurred”

b. Application of Article 17(1) FIFA RSTP

ba. No liquidated damages clause

130. In accordance with Article 17(1) FIFA RSTP, the Sole Arbitrator must preliminarily verify whether there is any provision in the Employment Contract setting out a specific amount of liquidated damages for breach of contact.

131. The Sole Arbitrator observes that no such liquidated damages clause is incorporated in the Employment Contract. Therefore, the Sole Arbitrator moves on to determine the factors to be taken into account to calculate any compensation due by the Player to Pharco in accordance with Article 17(1) FIFA RSTP.

bb. Value of the Player’s services: the remuneration under the Employment Contract and the subsequent employment contracts

132. One of the factors under Article 17(1) FIFA RSTP is the “remuneration element” which gives an indication of the value of the Player’s services to Pharco.

133. With regard to this point, the Sole Arbitrator notes that:

i. under the Employment Contract, at the time of its termination, the Player was entitled to receive from Pharco until the end of the 2022/23 season the amount of EGP 466,666,66, which amount corresponds to approximately USD 29,000 as determined by the FIFA DRC, which remained undisputed by the Parties;

ii. under the employment contract of the Player with Simba, the Player was to receive, as from 20 January 2020 until 30 June 2020, a signing fee of USD 10,000, a commission fee of USD 5,000, and a monthly salary of USD 2,000, corresponding to USD 27,000 in total.

134. In this respect, the Sole Arbitrator observes that apparently, immediately after concluding the Employment Contract, the Player was loaned to Enppi FC, as stipulated in the Offer. Then the Player’s loan period with Ennpi FC was apparently prematurely terminated for unknown reasons, albeit at the hearing Pharco argued that Ennpi FC “submitted a claim” because the Player was absent from training, following which the Player, after a short period at Pharco – during which Pharco’s coach allegedly reported that the Player was not well qualified for playing at Pharco’s level – apparently was loaned to the then third division club Alexandria Sporting Club, which loan was apparently also terminated prematurely.

135. Then, shortly afterwards, the Player signed a new employment contract with Simba, the club who transferred the Player to Pharco only a year before.

136. The Sole Arbitrator finds that this sequence of events indicates that the value of the Player’s services, at least as far as Pharco was concerned, had declined somewhat since the start of the Employment Contract.

137. The decline in the value of the Player’s services is also reflected in what happened after the premature termination of the loan at Ennpi FC. In fact, after the Player returned to Pharco, the Player’s value, in both economic and sporting terms, continued to drop, as may be inferred from the fact that the Player resorted to play for a third-division club, as Pharco’s coach reported that the Player was not qualified to play with Pharco’s team in the Egyptian Premier League. On this basis, the Sole Arbitrator considers that the Player’s value at the time of the termination had dropped even more.

138. However, the amounts due to the Player under his employment contract with Simba after termination of the Employment Contract increased, which suggests an increase of the Player’s market value.

139. Aside from the aforementioned elements, the Sole Arbitrator observes that Pharco does not appear to have attributed much value to the Player’s services at the time of the Player’s termination. This is demonstrated by Pharco’s lack of interest in the Player from a sporting perspective. In fact, Pharco showed little or no interest in the Player by placing him out on loan to the third division club, Alexandria Sporting Club, taking no action to ensure that it was protecting its investment, which, as the Sole Arbitrator sees it, implies that the value of the Player, for Pharco, had significantly declined.

140. Pharco also did not provide any evidence of requesting the Player to report himself to the club’s premises for training, not even when the Player signed an employment contract with Simba. Pharco’s claim before the FIFA DRC is the only evidence on record demonstrating an interest in the Player’s services, or at least in receiving compensation for the absence of the Player’s services.

141. Consequently, the Sole Arbitrator finds that Pharco did not attribute any meaningful value to the Player’s services at the time of the breach. On this basis, the remaining value of the Employment Contract were costs saved by Pharco, rather than a basis to determine the damages incurred by Pharco due to the Player’s early termination of the Employment Contract.

bc. Any lost earning

142. Another factor to be potentially considered is any loss that Pharco may have suffered because of the Player’s breach of contract, derived from its inability to secure a transfer fee for the Player. Serious offers received from third parties may give an indication of the market value of the Player’s services.

143. While the CAS, in line with Swiss employment law on loss of earnings, has held that the loss of a transfer fee can indeed be considered as a compensable damage provided that there is a necessary logical nexus between the breach of contract and the lost opportunity to realize that profit, there must be evidence that the non-breaching club actually suffered such a lost opportunity (see CAS 2018/A/5607 & 5608 at para. 115).

144. The Sole Arbitrator finds that there is no such evidence on file. No offers to acquire the services of the Player have been submitted into evidence, not any other evidence of interest in the Player’s services.

145. In light of the foregoing, the Sole Arbitrator finds that there is no lost earning to take into account in the present case.

bd. Fees and expenses paid or incurred by Pharco

146. Another factor potentially to be considered are the “acquisition costs”, i.e. the expenses paid or incurred by Pharco for acquiring the Player’s services, as amortized over the term of the Employment Contract. The remaining unamortized portion of such costs, in fact, may potentially be considered as a loss, caused by the early termination of the Employment Contract without just cause by the Player, regardless of Pharco’s interest in the Player’s services at the time of the contractual breach.

147. The Sole Arbitrator observes that Pharco paid a transfer fee of USD 85,000 to Simba to acquire the services of the Player. Since the Employment Contract was valid for a period of four and a half years from 30 January 2019 until the end of the 2022/23 season, the amount paid must be considered as amortized in equal portions over that four and a halfyear term. This linear amortization means that USD 65,000 (as determined by the FIFA DRC and not disputed by the Parties) remained unamortized when the Employment Contract was terminated after nearly one year after its entry into force.

148. While the Sole Arbitrator finds that Pharco was not particularly interested in the Player’s services at the time of the breach, this does not change the fact that it invested the aforementioned sum and made a loss on such investment, at least partially due to the Player’s breach of the Employment Contract.

149. While there are multiple ways to determine the amount of compensation to be paid, considering the specific circumstances of the present case and the evidence on record, the Sole Arbitrator finds it reasonable and fair that this amount, i.e. USD 65,000, is to be considered as damages incurred by Pharco as a consequence of the Player’s breach of the Employment Contract.

be. The costs saved: the Player’s remuneration under the Contract

150. The residual value of the Contract at the time of the termination was EGP 466,666,66 in total, which amount, as indicated supra, roughly corresponds to USD 29,000.

151. However, in accordance with CAS jurisprudence, and most definitely when one considers the factual background leading to the termination of the Employment Contract, the residual value of the Employment Contract at the time of breach, in casu, may be considered as an expense saved, which may be deducted from the objective amount of damages incurred by Pharco (CAS 2018/A/5607 & 5608 at para. 140; CAS 2008/A/1519-1520, at paras. 123-124; CAS 2009/A/1880 & 1881, at para. 102).

152. In the circumstances of the present case, the Sole Arbitrator considers it reasonable and fair that an amount of USD 29,000 is deducted from the aforementioned amount of damages of USD 65,000.

bf. The specificity of sport

153. The “specificity of sport” is not an additional head of compensation, nor a criterion allowing to decide ex aequo et bono, but a correcting factor which allows the Sole Arbitrator to take into consideration other objective elements (chiefly of sporting nature) which are not envisaged under the other criteria of Article 17 FIFA RSTP.

154. However, the Sole Arbitrator sees no reason to use the “specificity of sport” as a correcting factor in the matter at hand, particularly also considering Pharco’s limited interest in the Player’s sporting services.

155. While the Employment Contract was terminated by the Player within the “protected period”, the Sole Arbitrator finds that Pharco’s damages would be recovered if it would receive compensation for breach of contract in the amount of USD 36,000 (i.e. USD 65,000 minus USD 29,000).

bg. The joint liability of Simba

156. Finally, the Sole Arbitrator notes that Simba – during the hearing – argued that it should not be held jointly and severally liable for any compensation awarded to Pharco, because it did not induce the Player into prematurely terminating his employment relationship with Pharco, as it allegedly believed that the Player was a free agent. Therefore, Pharco’s claim came out of the blue and Simba cannot be sanctioned for that.

157. The Sole Arbitrator observes that Article 17(2) FIFA RSTP provides as follows:

“If a professional is required to pay compensation, the professional and his new club shall be jointly and severally liable for its payment”.

158. CAS jurisprudence has repeatedly confirmed that Article 17(2) FIFA RSTP requires that the new club, so long as it is identified as such, be held jointly and severally liable with the player for the payment of any compensation awarded against the player under Article 17(1) FIFA RSTP, regardless of whether there is evidence that it was involved in or induced the player to breach his contract (e.g. CAS 2015/A/3953 & 3954, at para. 52; CAS 2014/A/3852, at paras. 110 to 114; CAS 2013/A/3149, at para. 99; CAS 2013/A/3411, at para. 125), unless there are truly exceptional circumstances (e.g. CAS 2017/A/4977).

159. Such truly exceptional circumstances do not exist in the present matter, because the Sole Arbitrator concurs with Pharco that Simba should have known that the Player was still under contract with Pharco due to the Transfer Agreement signed on 29 January 2019 and Pharco’s knowledge of the Offer to the Player to sign an employment contract for the duration of four and a half years.

160. Under these circumstances, if Simba had wanted to exclude any risk of signing an employment contract with a player that may be registered with another club, it should have sought to obtain assurances from Pharco directly, or seek guidance from the relevant

national football associations prior to signing an employment contract with the Player, which it failed to do.

161. Consequently, the Sole Arbitrator finds that Simba is jointly and severally liable with the Player to pay compensation for breach of contract to Pharco.

bh. Conclusion

162. In view of all the above, the Sole Arbitrator considers it reasonable and fair that the Player and Simba are jointly and severally liable to pay the amount of USD 36,000 to Pharco as compensation for the Player’s breach of the Employment Contract, plus 5% interest per annum, as from 24 November 2020 until the date of effective payment.

B. Conclusion

163. Based on the foregoing, and after taking into due consideration all the evidence produced and all arguments made, the Sole Arbitrator finds that:

i) The Player terminated the Employment Contract without just cause; ii) The Player and Simba are jointly and severally liable to pay compensation for breach of the Employment Contract to Pharco in the amount of USD 36,000, plus interest.

164. All other and further motions or prayers for relief are dismissed.