Labour Disputes
Texto da decisão
REF. FPSD-13731
Decision of the
Dispute Resolution Chamber
passed on 16 May 2024
regarding an employment-related dispute concerning
the player Abdelraouf Benguit
BY:
Alejandro ATILIO TARABORELLI (Argentina)
CLAIMANT:
Abdelraouf Benguit, Algeria
Represented by Thomas Normand
RESPONDENT:
RCA (Raja Club Athletic), Morocco
pg. 2
REF. FPSD-13731
I. Facts of the case
1.
On 5 May 2024, the Algerian player, Abdelraouf Benguit (hereinafter: the Player or the
Claimant) and the Moroccan club, RCA - Raja Club Athletic (hereinafter: the Club or the
Respondent) concluded a termination agreement of its employment contract called
“protocole d’accord de résiliation d’un contrat de joueurs professionnel” (hereinafter: the
termination agreement), which freely translated to English means “protocol agreement for
the termination of a professional player’s contract”.
2.
Clause 1 of the termination agreement reads as follows:
“Aux termes des présentes, le Raja et le Joueur décident d’un commun accord de
procéder à la résiliation anticipée et définitive du Contrat de travail conclue entre les
deux parties.
Ladite résiliation prend effet à compter du 05/05/2023.
A compter du 05 Mai 2023, le Raja et le Joueur se trouvent déliés et libres de tout
engagement réciproque au titre dudit contrat de travail. ”
Freely translated to English:
“Under the terms hereof, the Club and the Player decide by mutual agreement to
proceed with the early and definitive termination of the Employment Contract
concluded between the two parties.
The said termination shall take effect as from 05/05/2023.
As of 05 May 2023, the Club and the Player shall be unbound and free of any reciprocal
commitment under the said employment contract.”
3.
Clause 2 of the termination agreement reads as follows:
“Le Raja et Le Joueur arrêtent, de commun accord et d’une manière expresse,
irrévocable et définitive le montant dû au Joueur au titre de ladite résiliation
anticipée à la somme de 833.000 Dirhams, payable comme suit :
-
433.000 DHS (Quatre Cent Trente Trois Mille MAD) par virement bancaire au plus
le 30/06/2023.
400,000 DHS (Quatre Cent mille MAD) par virement bancaire au plus tard le
31/07/2023.
Dans le cas où le Club ne paierait pas l’un des versements susmentionnés dans son
intégralité et/ou dans le délai imparti, le Club sera tenu de payer à Monsieur
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REF. FPSD-13731
Abdelraouf Benguit des intérêts depuis la date d’échéance jusqu’à la date de paiement
effectif des sommes restantes prévues dans cet accord, au taux de 18% (dix-huit pour
cent) par an.
Un paiement est considéré comme en retard quarante-huit heures après chaque date
d’échéance prévue ci-dessus. Aucune obligation de mise en demeure n’est nécessaire.
Le Club convient expressément que les taux d’intérêt susmentionnés sont
proportionnés et raisonnables et le Club comprend que Monsieur Abdelraouf Benguit
n’aurait pas conclu le présent Accord de règlement sans être rassuré par les
dispositions en question conformément à l’article 1105 du Dahir formant Code des
Obligations et Contrats, le paiement de la somme due par le Raja au Joueur éteint
définitivement et irrévocablement toute demande et/ou action de quelque nature que
ce soit relative à toute somme d’argent et/ou demande de paiement réclamée par le
Joueur au Raja. ”
Freely translated to English:
« The Club and the Player hereby expressly, irrevocably and definitively agree that the
amount due to the Player in respect of the said early termination shall be the sum of
833,000 MAD, payable as follows:
- MAD 433,000 (Four Hundred and Thirty-Three Thousand MAD) by bank transfer no
later than 30/06/2023.
- MAD 400,000 (Four Hundred Thousand MAD) by bank transfer no later than
31/07/2023.
In the event that the Club fails to pay any of the aforementioned instalments in full
and/or by the due date, the Club shall be obliged to pay the Player interest from the
due date until the date of actual payment of the remaining sums provided for in this
agreement, at the rate of 18% (eighteen per cent) per annum.
A payment is considered late forty-eight hours after each due date set out above. No
formal notice is required.
The Club expressly agrees that the aforementioned interest rates are proportionate
and reasonable and the Club understands that the Player would not have entered into
this Settlement Agreement without being reassured by the said provisions in
accordance with Article 1105 of the “Dahir formant” of the Code of Obligations and
Contracts, payment of the sum due by the Club to the Player definitively and
irrevocably extinguishes any claim and/or action of any nature whatsoever relating to
any sum of money and/or demand for payment claimed by the Player from the Club. »
pg. 4
REF. FPSD-13731
4.
In accordance with the employment contract between the Claimant and the Respondent
retrieved from the Transfer Matching System (TMS), the monthly salary of the Player was
EUR 3,000 or approx. MAD 32,300.
5.
On 6 June 2023, the Respondent addressed a letter to its bank requesting the payments of
“may salary”. In accordance with it, the Respondent requested the payment of MAD 32,100
for the Player.
6.
On 7 December 2023, the Claimant put the Respondent in default and requested payment
of EUR 81,478.63 corresponding to the payment agreed in the termination agreement,
setting 8 days’ time limit in order to remedy the default.
7.
On 10 January 2024, the Claimant wrote to the Respondent indicating that he did not
receive the requested amount and that it would file a claim in front of FIFA.
II. Proceedings before FIFA
8.
On 19 February 2024, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
9.
On 19 February 2024 and amended on 22 February 2024, the Claimant lodged a claim
against the Respondent in front of FIFA and requested payment of MAD 833,000
corresponding to approx. EUR 76,037.78, in accordance with the termination agreement.
10. Additionally, he mentioned that he should be entitled to 18% interest p.a. which was
contractually agreed, and consequently, he is entitled to EUR 8.136,48 as interests.
11. The Claimant requested the following relief:
“a) Déclarer la requête de Monsieur BENGUIT parfaitement recevable et bien-fondée ;
b) Condamner le Club de RAJA CASABLANCA au paiement au profit de Monsieur
BENGUIT de la somme en principal de 76.037,78 € par une stricte application du
Protocole d’accord ;
c) Condamner le Club de RAJA CASABLANCA au paiement au profit de Monsieur
BENGUIT de la somme de 8.136,48 € au titre des indemnités de retard à hauteur de
18% prévues au sein du Protocole d’accord à savoir :
pg. 5
REF. FPSD-13731
- 4.519,55 € au titre des indemnités de retard à valoir sur la première échéance de
l’Indemnité de résiliation à compter du 30 juin 2023 (39.524,73 € x 18% du 30-06-2023
au 16-02-2024) ;
- 3.616,93 € au titre des indemnités de retard à valoir sur la deuxième échéance de
l’Indemnité de résiliation à compter du 31 juillet 2023 (36.512,45 € x 18% du 31-072023 au 16-02-2024) ;
d) Condamner le club de RAJA CASABLANCA à payer les frais de justice auxquels
Monsieur BENGUIT doit faire face pour un montant estimé à HUIT MILLE EUROS
(8.000,00 €) ;
e) Condamner le Club de RAJA CASABLANCA à supporter tous les frais administratifs
et de procédure qui ont déjà été engagés ou qui pourraient l’être dans le cadre de la
présente procédure. »
Freely translated to English:
« a) Declare the Player’s claim admissible and founded;
b) Order the Club de RAJA CASABLANCA to pay the Player the sum of EUR 76,037.78 by
strict application of the termination agreement;
c) Order the Club de RAJA CASABLANCA to pay the Player the sum of EUR 8,136.48 by
way of late payment indemnities in the amount of 18% provided for in the termination
agreement, i.e:
- EUR 4,519.55 in late payment penalties to be applied to the first instalment of the
Termination payment as from 30 June 2023 (EUR 39,524.73 x 18% from 30-06-2023
to 16-02-2024);
- EUR 3,616.93 in late payment penalties to be applied to the second instalment of the
Termination payment from 31 July 2023 (€36,512.45 x 18% from 31-07-2023 to 16-022024);
d) Order the RAJA CASABLANCA Club to pay the legal costs incurred by the Player in an
amount estimated at EIGHT THOUSAND EUROS (€8,000.00);
e) Order the RAJA CASABLANCA Club to pay all administrative and procedural costs
that have already been incurred or that may be incurred in the context of the present
proceedings.”
b. Position of the Respondent
pg. 6
REF. FPSD-13731
12. In its reply, the club indicated that it paid a partial amount of the termination agreement
of MAD 32,100 and provided a bank statement showing the payment of that amount.
13. As to the interest rate, it mentioned that it is hight and it would have an impact in its
financial situation, therefore, the Respondent requested to deduct the interests to 5%.
14. The Respondent requested the following:
-
A reduction of MAD 32,500 of the amount claimed by the Player.
-
A reduction of the interest rate from 18% to 5%.
-
To use a mediation procedure to resolve this matter amicably.
c. Additional comments of the Claimant regarding the proof of payment
presented by the Respondent
15. The Claimant confirmed the receipt of MAD 32,100, however, he mentioned that such
amount corresponded to May salary and not to the amount stipulated in the termination
agreement which was to be paid on 30 June 2023 and 31 July 2023.
pg. 7
REF. FPSD-13731
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 19 February
2024 and submitted for decision on 16 May 2024. Taking into account the wording of art.
34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
17. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1
lit. b) of the Regulations on the Status and Transfer of Players (February 2024 edition), the
Single Judge is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Algerian player and a
Moroccan club.
18. Finally, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (February 2024
edition), and considering that the present claim was lodged on 19 February 2024, the
February 2024 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
19. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the TMS.
c. Merits of the dispute
20. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
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REF. FPSD-13731
considerations he will refer only to the facts, arguments, and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
21. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the parties strongly dispute the lawfulness of the nonpayment of certain financial obligations under the termination agreement namely, MAD
833,000.
22. In this context, the Single Judge noted that the Respondent requested a deduction of the
payment performed after the contract terminated of MAD 32,100. On the other hand, the
Claimant mentioned that he received such amount, but this amount was not linked to the
payment of the termination agreement but to the payment of his May 2023 salary.
23. Therefore, the Single Judge acknowledged that his task was to determine, based on the
arguments presented by the parties, whether this amount should be deducted from the
outstanding amount and the amount to which the Claimant is entitled.
24. In this context, the Single Judge acknowledged that the letter addressed by the Club to its
bank mentioned “May salaries”, however, the Single Judge also recognised that (i) this
request took place on 6 June 2023 (i.e. one month after termination of the contract by the
parties); (ii) the termination agreement clearly mentioned that the contract would end on
5 May 2023 and that the total amount due by the Club to the Player would be MAD 833,000,
and that no other amount was due or would be due; (iii) in accordance with the Players’
bank statements and the contract retrieved from TMS, the monthly salary was MAD 32,100.
Therefore, the Single Judge ruled that the May salary would have been paid in total and not
for the 5 days which would have been inconsistent with the days worked in May and the
termination agreement, which already included the total amount due by the Club upon
termination of the contract.
25. Consequently, the Single Judge concluded that, the payment of MAD 32,100 was in fact part
of the payment of the termination agreement, and it shall be deducted from the
outstanding amount due.
26. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the Contract concluded between the parties, namely MAD 800,900.
27. In addition, taking into account the termination agreement as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 18% p.a. on the outstanding amounts as from 1 July 2023 on the amount of MAD
400,900 and as from 1 August 2023 on the amount of MAD 400,000 until the date of
pg. 9
REF. FPSD-13731
effective payment. However, the Single Judge observed that the Claimant limited his
request of interests to EUR 8,136.48. In accordance with the principle ne ultra petita, the
Single Judge decided to award EUR 8,136.48 as interests.
ii. Compliance with monetary decisions
28. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
29. In this regard, the Single Judge highlighted that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from registering any
new players, either nationally or internationally, up until the due amounts are paid. The
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
30. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
31. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
32. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24 par.
8 of the Regulations.
d. Costs
33. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Single Judge decided that no procedural costs were to be
imposed on the parties.
34. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
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REF. FPSD-13731
35. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 11
REF. FPSD-13731
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Abdelraouf Benguit, is partially accepted.
2.
The Respondent, RCA (Raja Club Athletic), must pay to the Claimant the following
amount(s):
-
MAD 800,900 as outstanding remuneration
-
EUR 8,136.48 as interests.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-13731
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13