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    CAS 2023 A 9419 Pyramids FC v. Huddersfield Town AFC & FIFA

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    mfornsc

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    TAS / CAS Tribunal Arbitral du Sport Court of Arbitration for Sport Tribunal Arbitral del Deporte ARBII AWARD Pyramids FC, Egypt Huddersfield Town AFC, Germany “ Fédération Internationale de Football Association, Switzerand CAS 2023/A/9419- Lausanne, December 2028 Gono TAS / CAS SIO TrIBUNAL ARBITRAL DU SPORT NAN] Soe. oF aramanon Fon spon ‘TRIBUNAL ARBITRAL DEL DEPORTE ‘CAS 2023/4/9419 Pyramids PC v. Huddersfield Town AFC & FIFA ARBITRAL AWARD dativered by the COURT OF ARBITRATION FOR SPORT sitting in the following composition: Sole Arbitrator: Mr Lats Hillger, Attomey-at-Law, Copentagen, Denmark in the arbitration between Pyramids FC, Egypt Represented by Me Rol Mller, ttorney-at-Law in Zutch, Switzerland Appeltant 1 Huddersfield Town AFC, England Represented by Mr Jan Scheele, Atomey-at-Law, Berlin, Germany First Respondent 2/ Fédération Internationale de Football Association (FIFA), Zieh, Switzertand Represented by Mt Miguel Ligtard Femindez-Palacios, Director of Litigation, Zurich, Swiverland Second Respondent ‘TRIBUNAL ARBITRAL DU SPORT 023A 9419 Pym FC ‘ Mdrsfel Town AEC FIFA Page 2 COURT OF ARBITRATION FOR SPORT ‘TRIBUNAL. ARBITRAL DEL DEPORTE a. Parris Pyramids FC (the “Appellant” or “Pyramids”) isa professional Egyptan football club flied with the Egyptian Football Associaton, which in turn is afiiated withthe Fédération Internationale de Football Association. The Club is curetly pantipating inthe Egyptian Premier League which i the tier-1 league of Egyptian football ‘Huddersfield Town AFC (the “First Respondent” or “Huddersfield is a professional English football lub afated with the English Football Association, which in tur is aflliated with FIFA, Huddersfield is curently participating in the English Football [League Championship, which isthe tie-2 league of English foothall ‘The Fédération Internationale de Football Assocation (°FIFA™ or the “Second Respondent”) isthe world governing body of football, whose headqueters are Tossed. in Zsich, Switzerland, FACTUAL BACKGROUND Background Facts, Below is a summary ofthe relevant facts and allegations as established by the Sole Arbitrator on the basis of the decision rendered by the Single Judge ofthe Players’ Status Chamber ofthe FIPA Football Tribunal (the "FIFA PSC") on 6 December 2022 (the “Appeated Decision”), the weitten and oral submissions of the Parties and the evidence adduced, Additional facts and allegations found in the Paries’ submissions land evidence may be sot 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 procedings, the Sole ‘Atbitttor refers in this Award only to the submissions and evidence he considers necessary to explain his reasoning, (On 10 September 2020, the Appellant and the First Respondent signed a transfer ‘agreement (he “Transfer Agreement”) regarding. the transfer of the Egyptian professional football player Ramadan Sobhi Ahmed (the “Player") from the Ftst Respondent tothe Appellant. ‘The Transfer Agreement stated, inter alia, 2s follows: Sod 2. in consideration ofthe permanent transfer ofthe Player's regisraton from HTARC the Transferee, the Transferee agrees fo pay to HTARC the guaranteed net sum of £2500,000 (Tvo Million Five Hunnbed Thousand Pounds Sterling) (the “Transfer Fee"), payable as follows: (a £1,000,000 (One Mition Pounds Sterling) on a before 10 September 2020; (CAS 20249419 Pyramids FC TRIBUNAL ARBITRAL DU SPORT ude Town AKC TIPA -Page’3 COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE (©) £750,000 (Seven Hundred and Fifty Thousand Pounds Sterling) on or before I January 2021; and (6) £750,000 (Seven Hundred and Fifty Dhousand Pounds Sterling) on or before 1 July 2021, bl 3. In addition to the Transfer Fee, in further consideration of the transfer of the Player's registration from HTABC to the Transfere, the Transferee agrees 10 pay 10 FHITABC the fllowing nce only net sums up t0 a maximum aggregate net sum of GBP ‘500,000 (Five Hundred Thousand Pounds Sterling) on the fist gecasion they occur “during seasons 2020/2021, 2021/2022 andor 2022/2023 {@ the sum of GBP 100,000 (one Hundred Thousand Pounds Sterling) xpom the Player completing 20 Appearances; (®) the sum of GAP 100,000 (one Hundred Thousand Pounds Sterling) upon the ‘Player scoring 10 goals in First Team Competitive Matches; fol bl" 7. On 4 November 2021, the First Respondent initiated proceedings against the Appellant before the FIFA PSC (the “First PSC Claim”). In its elaim, the First Respondent sought payment ofthe third instalment of the Transfer Agreement in the mount of GHP 750,000 plus 5% interest pa. as from 2 July 2021 and requested to be ‘varded the amount of GBP 200,000 pursuant to clause 3 (8) and (b of the Transfer ‘Agreement plus 3% interest pa. as from 12 November 2021 8. By email of 13 February 2022, and in the course of the Parties’ efforts to reach an amleable solution, de ppelian| propose "force majeure clause” tbe included ina possible settieent agreement, arguing, dn alla, as follows in its message to the First Respondent “fod However the Appellant] would accept exceptionally fo apply the contractual penalty provided in contract fe. 10%) if we can agree onthe force majeure clause. Jn principle, the commencement date of new season 2022/23 in Egypt will tart on 15 “August 22, such, [he Appellant} concerns are to fulfil its obligations regarding the Second and third payments from the budget of new season 2022/23 not season 2021/22. Accordingly, [the Appellant} proposed a draft forthe force majeure clause ‘as provided In the draft As you will note, [the Appellant] proposed that any ‘postponement for paying the second and third payments due fo force njeure shall not ‘exceed: (i) the commencement date of season 2022/23 far the second payment and: (i): three months after the commencement date of season 202223 for the third payment.” 9, On 14 February 2022, the Fist Respondent accepted the wording ofthe foree majeure clause, TRIBUNAL ARBITRAL.DU SPORT ‘CAS 202819819 Pyramids FC Hades Town AFC FIFA Pape 4 COURT OF ARBITRATION FOR SPORT ‘TRIBUNAL ARBITRAL DEL DEPORTE 10. 1 (On 15 February 2022, the First Respondent and the Appellant conclued a settlement agreement (the "Setlement Agreement") containing the above-mentioned clause ‘Clause 5), thus terminating the procedures regarding the First PSC Claim with no decision passed “The Settlement Agreement stated, inter ala, as follows: “Ld 1. Pyramids shall pay the suns £ 919,567.38 (Nine Hundred and Nineteen Thousand Five Hndred and Siy-Seven Pounds Sterling and Dhiry Eight Cents) (hereinafier, the "Settlement Sum”) to Huddersfield via bank transfer i fll an fina settlement ‘with regards to the object of the Dispute before the FIFA Footbal Tribunal with Reference Number FPSD-4526 () The Settement Sum shall be pold in 3 (Oree) installments according to the {following amounts and payment plan: the first installment of 459,783.69 (Four Hundred and Fifty Nine Thousand Seven ‘Hundred an Eighty Three Pounds Sterling and Sixty Nine Cents) shell pad within 7 business days upon signature ofthe present Setlement Agreement 1) the second installment of £ 229,891.85 (Two Hundred and Twenty Nine Thousand {Bight Hundred and Ninety One Pounds Sterling and Eighyy Five Cents) shal be paid fn or before 30 August 2022: 6) the third instalment of £ 229,891.85 (Two Hundred and Twenty Nine Thousand Fight Hundred and Ninety One Pounds Sterling and Bighty Five Cents) shall be paid ‘an or before 30 November 2022, fol 2. In the event of delay ar incomplete payment of any of the instalments within the Stated deadlines, [the First Respondent) shall serve the {the Appelant] with a inal notice of default granting 10 ten) additional days to make the dve payment. If fhe Appellant} fail to remedy the default within the addtional deadine granted, the ‘presen Seilement Agreement sil be deemed breached by [the Appellant} and all the Insalments sll be come du immediately, cond the [First Respondeng willbe ented to claim before the competent FIFA dispute resoluion body the full oustanding ‘amtoun! of the Settlement Sum, including bork the delayed and the not yet due instalments. In addition. [the Appellant] shall be ented to clam a contractual ‘penalty of 10% on the total oustanding amount due wer the presert agreement, and (1 5% interest pa. on the contractual penalty amount as of the day of the present Seitlement Agreement s breached by {the Appellant}. 4. In case [the Appellan] breaches the present Setlement Agreement in accordance ‘with clause 2 above, the applicable interest due on the amounts of the guaranteed transfer fee shail keep accruing as ifthe present Setlement Agreement had not been ‘TRIBUNAL ARBITRAL DU SPORT ‘CaS 202849419 Pyamiés FC \: Hodes Town AFC FIFA Page S COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE concluded by the Parties, until she date of effective payment of the oustanding debt by [ihe Appian). bd 5. Subject 10 providing [the First Respondent] with an official decision from the competent authority in Egypt, in case of the sporting. activity in Bigpt being Suspended, or season 2021/2022 being extended because ofa force majeure such as Covid-9 before 30 August 2022, the Parties agreed to re-negotiat, i good faith the dates ofthe second and third payment taking into account the effects ofthe suspension ‘or extension of resolution on the economic situation of the Appell. In all cases, {any postponement for paying the second and third payments shall nc exceed: () the Commencement date of season 2022/23 forthe second payment and; ii) three months fafler the commencement date of season 2022/23 forthe third payment. [J ‘The tolal settlement amount of GBP 919,567.38 included the applicable default inerest and wes reduced by the amount of GBP 53,597, the latter beng owed by the Respondent fo the Appellant ss Solidarity Contibution, as set out ia the Settlement ‘Agreement The Appellant paid the first instalment on 15 February 2022 without any issues. By leer of 28 August 2022 tothe First Respondent, the Appellant iavoked Clause 5 ofthe Settlement Agreement, requesting extension of payment ofthe second and tied instalments ofthe Setlement Agreement by statin, iner alia, as follows Tod In accordance with article 5 ofthe above mentioned Agreement, n case of extension ofthe 2021/2022 sports season i Egypt, the partes shall “renegotiate, n good faith, the doves of the second and third installment taking into account the effets ofthe suspension ar extension resolution on the economic situation of Pyranids FC “Effectively, the Egyptian Football Association ("EFA on 17 May 2922 extended the 2021/2022 sporting season to end on 30 August 2022. In addition, on 17 August 2022 the EFA announced that the 2022/2023 sporting season shall not start on I October 5022, but will be pushed back to 15 October 2022 Therefore, and since the 2021/2022 Sports season has been extended on by the EPA, Pyramids FC proposes the following with regards to the payments of the second and third installment (@) The payment of the second installment, inthe amount of 229,891.85 (Two Hundred and Twenty Nine Thousand Eight Hundred and Ninety One Sterling Pounds and Eighty Five Cents), on the 15th of October 202, therefore at the beginning of the 2022/2023 season in accordance with article I and 5 ofthe Agreement; and (©) The payment of the third installment, inthe amount of £229,891.85 (Two Hundred and Twenty Nine Thowsand Eight Hundred and Ninety On Sterling Pownds and Eighty Five Cents), on the 1 January 2023, therefore ‘TRIBUNAL ARBITRAL DU SPORT ‘CAS 2021A419 Pyramids FC ‘Huddersel Town AFC FIFA Page 6 COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE 3 months after the payment of the second installment in accordance with ‘article I and 5 of the Agreement We hereby present this offer in good faith, and inthe spirit of cooperation berween clubs, therefore, we kindly hope tha you acepy our kind offer.” By letter of 8 September 2022 (the “First Default Leer), the First Respondent rejected the Appellants request and put the Appellant in default, gnnting a 10-day time init remedy the default, stating inte alia, as follows “bl (On 29 August 2022, Pyramids FC sent 0 notification to Huddersfeld Town AFC informing that the season in Egypt had been extended by the Exyptian Football “Association until 30 August 2022, However, the season was always wcheduled ro end by such date, and even if was ot, there is no evidence that any alleged extension is «die 10 0 force majeure such as Covid 19, Asa consequence, Clause 5 ofthe Setilement Agreement isnot applicobe. Up to the present date, Huddersfield Town AFC have not yet recelved any payment “from you chub with regards to the second installment pursuant 10 the Setlement Agreement Jn view of the foregoing, the present notification is a formal default notice addressed to Pyramids FC urging you" elub 10 proceed with the payment of the overdue 2nd installment of the Setierient Agreement in the amount of £ 229,891.85 (Two Hundred ‘and Twenty Nine Thousand Eight Hired and Ninety One Pounds Sterling. ad ‘Fighty Five Cents) within 10 (len) days as from the receipt of this ‘etter, i, on or before 18 Seprember 2022, ax per clause 2 ofthe Setiement Agreement [..]” (0n 26 September 2022 (the “Second Default Letter", the First Respondent reiterated its position, granting the Appellant an additional 10-day time limt to remedy the default, stating, inter alia, as follows Tod On 29 August 2022, Pyramids FC sent « notification to Huddersfield Town APC Informing that the season ty Egypt had been extended by the Egyptian Football “Association wil 30 August 2022. However, she season was always scheduled to end by such date. and even if was not, there is no evidence that any alleged extension 1s «dye 100 force majeure such as Covid 19. Ax a consequence, Clause 5 ofthe Setilement Agreement isnot appliexble Considering the above, Pyramids FC were served with a notice of default on 08 September 2022 and granied 10 (ten) days 0 make the overdue payment, pursuant 10 (Clause 2 ofthe Settlement Agreement ‘TRIBUNAL ARBITRAL.DU SPORT {CAS 2028/9419 Pyramids FC Hadden Town AFC A FIFA Page 7 COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE. 17 However, up tothe present dite, Huddersfield Town APC have not yet received any payment from your club with regards 10 the second installment pursuant t0 the Settment Agreement. as a consequence, the Settlement Agreement 1s deemed breached by Pyramids PC and all the instaliments are immediately due, including both the delayed and the not yet due installments, pursuant 10 Clause 2 of the Settlement Agreement. Moreover, the penalty fee established in Clause 2 of the Settlement Agreement is automatically triggered since 19 September 2722, According to Clause 1 of the Settlement Agreement, the Settlement Sum was in the oval aanount of £919,567 38. The second an the third installments corresponded to foal sum of £ 459,783.69. The contractual penalty of 10% on the tal oustanding ‘amount thus corresponds to the sum of 45,978.37. {In view ofthe foregoing, Pyramids FC is hereby formally served with a final notice of default to proceed withthe payment ofthe remaining Setiement Sum of £ 459,783.69, plus the applicable contractual penalty fe tht has been triggered inthe amount of 145,978.37. within 10 (en) days as from the receipt of his eter, le, on before 06 (October 2022. The total outstanding amount of 505,762.06 (five hundred and five thousand seven Iundred and sixyytwo Pounds Sterling and s0e cents) shall be paid to the following Dank account of Huddersfield Town AFC [..]" Proceedings before the FIFA Players? Status Committee ‘On 19 October 2022, the First Respondent lodged a claim before the FIFA PSC, ‘requesting the FIFA PSC to accept the claim and order Pyramid to a) Pay to the Claimant the amount of £ 439,783.69. (our hundred and fify-nine thousand seven hundred and eigh-three Sterling Pounds and sixty-nine cents), corresponding ta the oustanding amount due pursuant to the Settement Agreement ‘signed between the Parties on 15 February 2022; 1) Pay to the Claimant imerest atthe rate of 5% pa. on the amount of£ 750,000.00 as (fF 02 July 2021 unl the date of effective payment ©) Pay to the Claimant interest a the rate of 5% pa. on the amount ef £200,000,00 as Of 12 November 2021 until the dave of effective payment, Pay to the Claimant the amount of £ 45,978.37 (forty-five thousand nine hundred find sevenn-eight Sterling Pounds and chiry-seven coms), corresponding. 10 the penaly foe established in she Setlemert Agreement ) Pay to the Claimant Interest atthe rate of $% pa. om the amount of £ 45,978.37 as (Of 19 September 2022 until the date of efective payment Lo] Moreover the Claimant requests that the Players’ Status Chauaber ofthe FIFA ‘Football Tribunal imposes the saetlons provided for by Art. 12bis ofthe FIFA RSTP. spon the Respondent.” ‘cas 202349419 Pyramids FC TRIBUNAL ARBITRAL DU SPORT \- Haden Tow AFC FIFA Page 8 CCOURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE 18. 20 21. 2 23 24, 2s, 26, In suppor of ts claim, the Fitst Respondent submited, inter alla, that the Appellant's failure to pay the second instalment of the Setlement Agreement triggered the acceleration and penalty’ clause therein. In addition, the Fest Respondent argued that interest should be calculated over the mounts requested in the First PSC Claim as from the due dates unt the date of effective payment, In its reply tothe FIPA PSC, the Appellant submitted, inter alia, thatthe Parties’ tae intention while drafting Cizuse 5 of the Settlement Agreement vast adapt the payment dates of the second and thitd instalments to the fixtures of the Egyptian Premiee League Season. In this repard, it was argued that there was indeed a postponement of the Egyptian Premier League 2022/2023, entailing tht ~ when Interpreting the “unclear” wording of the said clause ~ the Appellant should be ranted an extended deadline to perform the payments. ‘What the Parties meant by “Yorce majeure” was that “by any reason (rot in disposal of the Appellam) the Exyptian Premier Legue season 2021/2022 and 2022/2023 would be postponed”, As sich, COVID-19 vas only mentioned as an example and there was no need t present further evidence to this exten “The Appellant confirmed having received the default notices fiom the First Responslent, but atthe same time submitted thatthe aceleation anc penalty clauses ‘were not triggered because the seond instalment ofthe Settlement Agreement was not yetoverdue In.adition, the Appellant submited that caleulaing interest over the original amounts in the Fist PSC Claim would be excessive and imply the same interest being awarded twee. “The FIFA PSC initially analysed whether it was competent to deal withthe ease with, reference to the October 2022 edition of the Rules Goveming the Procedures ofthe Players’ Status Committe and the Dispute Resolution Chamber he “Procedural Rules”) and found that i¢ was competent to deal with the matter at stake, shih ‘concents a dispute between two clubs belonging to different members associations. ‘The FIFA PSC further concluded that dhe July 2022 edition of the Regulations on the Status and Transfer of Players (the “FIEA RSTP") was applicable tothe case and referred tothe base principle of burden of proof as stipulated in Arle 13 (5) ofthe Procedural Rules. With repitd to the substance of the matter, the FIPA PSC initially noted that the Parties did not dispute thatthe second instalment provided for in the Settlement “Agreement was not paid by the Appellant, hut the Parties disputed the date on which such an amount fll due in light ofthe specific wording of Clause $ 3f the Settlement ‘Agreement [axed on the above, the FIPA PSC established that the main issue at stake was to ‘determine when the second instalment of the Settlement Agreement fell due and the possible consequences thereof. TRIBUNAL ARBITRAL DU SPORT {CAS 2028/9419 Pyramids FC Mader Tow AEC FIFA Page COURT OF ARBITRATION FOR SPORT TRIBUNAL ARBITRAL DEL DEPORTE n 28 2. 30. 31 2 In this regard, the FIPA PSC highlighted that the wording of Clause 5 of the Settlement Agreement Was clear and unequivocal and needed no interpretation. In particular, and when analysing the clause, the FIPA PSC pointed out that any extension ofthe dealnes for payment would be subject to) the Appellant providing fan official decision from competent authority in Egypt demonstrating that the Sporting activity was suspended or the 2021/2022 season was extended due toa force tajeure situation; and (i) the Parties reaching an agreement in good faith as regards the possible extension of the deadlines. Since the Appellant could not establish that any force majeure situation (ic ‘suspension ofthe sporting activity or postponement ofthe 2021/2022 season in Egypt ‘an not the 2022/2023 season as elsimed by the Appeliant) occured nor that any extension agreement had been concluded, which meant that none of the mentioned ‘onions were met, the FIFA PSC decided to set aside the Appellans argumentation land determined that the second instalment of the Setlement Agreement should have been paid within the original deadline, i, by 30 August 2022, Consequently, on account of all of the above-mentioned considerations, combined with the general principle of pacta sunt servanda, the FIFA PSC established thatthe tcceleration and penalty clause was in fact triggered and therefore decided thatthe ‘Appellant was lable to pay tothe First Respondent outstanding remuneration of GBP {459,783.69 as well asthe coneacusl penslly of GBP 45,978.37, which the FIFA PSC

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