Labour Disputes
Texto da decisão
REF. FPSD-11458
Decision of the
Dispute Resolution Chamber
passed on 26 October 2023
regarding an employment-related dispute concerning
the player Izuegbu Abonima Boniface
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Jorge Gutiérrez (Costa Rica), member
Stella Maris Juncos (Argentina), member
CLAIMANT:
Izuegbu Abonima Boniface, Nigeria
Represented by Mr Chijioke Okpanku
RESPONDENT:
Maghreb Association Sportive, Morocco
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REF. FPSD-11458
I. Facts of the case
1.
On 2 August 2023, the Moroccan club Maghreb Association Sportive de Fes (hereinafter:
club or Respondent) sent an offer of an employment contract (hereinafter: the Offer) to the
Nigerian player Izuegbu Abonima Boniface (hereinafter: Claimant or player).
2.
Pursuant to the Offer, the duration of the prospective contract was stipulated as from the
date of signature until 30 June 2025.
3.
Furthermore, the financial conditions of the abovementioned Offer were as follows:
-
Annual salary of USD 80,000 for the season 2023-2024;
Annual salary of USD 100,000 for the season 2024-2025.
4.
The Offer equally stipulated that the Claimant had to pass a medical and physical test to
certify that he was able to play football, in order for the eventual contract to be valid.
5.
On an unspecified day, the Claimant received an invitation letter from the Egyptian club
Ismaily FC to play for the latter club.
6.
On 11 August 2023, the Claimant and the Respondent signed an employment contract
(hereinafter: the Contract) valid as from 11 August 2023 until 30 June 2025.
7.
Pursuant to the Contract, the Claimant was entitled to a monthly salary of MAD 35,000, as
well as a signature bonus of MAD 400,000, payable in two separate instalments:
-
MAD 300,000 on 11 August 2023;
MAD 100,000 on 30 June 2024.
8.
Furthermore, the Claimant was entitled to a performance bonus payment of MAD 560,000,
proportional to the number of matches played, for the second season (i.e. 2024/2025).
9.
According to the Claimant, the Respondent refused to provide him with a copy of the
Contract signed by both parties.
10. On the same day the Contract was signed, the Claimant travelled to Morocco to complete
medical and physical tests, using a flight ticket provided by the Respondent.
11. Following the signature of the Contract by the Claimant, the latter was, according to
himself, consistently training with the Respondent. According to the Claimant, at this time,
no food, drink or adequate living conditions were provided by the Respondent. The
Claimant equally pointed out that, due to these circumstances, he fell ill, to which the
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REF. FPSD-11458
Respondent reacted by allegedly ordering the team doctor to provide unprescribed
medication.
12. On 22 August 2023, the Respondent informed the Claimant’s agent that he was no longer
needed, as the head coach did not deem his performance sufficient for the level required.
II. Proceedings before FIFA
13. On 23 August 2023, 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
14. In his claim, the player argued that the Respondent terminated the Contract without prior
notice and due to sporting performance, which is pursuant to the constant jurisprudence
of the DRC, not a just cause.
15. The player further asserted that he turned down a lucrative offer from an Egyptian club to
play for the Respondent, which caused a further loss of opportunity to him.
16. The Claimant requested outstanding remuneration of USD 40,000, corresponding to the
signature bonus due on 11 August 2023, as well as compensation of USD 140,000
corresponding to the residual value of the Contract as well as USD 50,000 in the value of
the lost opportunity for signing for the Egyptian club.
b. Position of the Respondent
17. Despite having been invited to do so, the Respondent failed to provide a position to the
claim within the stipulated time limit.
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REF. FPSD-11458
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 23 August 2023 and submitted
for decision on 26 October 2023. 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.
19. Subsequently, the members of the Chamber 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 lit. b) of the
Regulations on the Status and Transfer of Players May 2023 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Nigerian player and a Moroccan
club.
20. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and
considering that the present claim was lodged on 15 February 2023, the May 2023 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
21. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
22. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
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REF. FPSD-11458
i. Main legal discussion and considerations
23. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the basis of the present dispute consisted of the
alleged termination of the Contract by the Respondent without just cause.
24. In this context, the Chamber acknowledged that it its task was to determine when and how
the Contract had been terminated, whether or not such termination resulted with or
without just cause, and what the consequences of such termination may be.
25. The Chamber began its deliberations by revisiting the parties’ submissions, starting with
the Claimant who had argued that the Respondent had suddenly informed him that he was
no longer needed and that, due to insufficient sporting performance, he would be
discarded from the team. According to the Claimant, this did not constitute a just cause to
terminate the Contract, giving rise to liability for the Respondent. The Chamber also noted
that the Claimant alleged not having been paid the first instalment of the signature bonus,
as well as the first monthly salary for August 2023, as well as losing out on an opportunity
of signing a contract with the Egyptian club Ismaily SC.
26. On the other hand, the Chamber recalled that the Respondent did not provide an answer
to the claim within the stipulated time-limit, thus leaving the submission of the Claimant
uncontested.
27. The Chamber, at this point, wished to refer to the wording of art. 13 par. 5 of the Procedural
Rules, according to which a party that asserts a certain fact also bears the burden of proving
its veracity.
28. In the case at hand, the Chamber noted that although there was no formal termination
letter by either party on file, the Claimant submitted an uncontested text message from
the Respondent to his agent in which he was informed by the management of the club that
the head coach considered his performance insufficient and that his services were no
longer desired.
29. The Chamber considered said correspondence by the club a sufficiently clear way of
conveying that the contractual relationship had, from thereon, no scope for continuation.
As such, it was firstly established that the Respondent terminated the Contract on 22
August 2023 by way of said message.
30. Having said this, the Chamber turned to the question of just cause.
31. The Chamber recalled its own longstanding jurisprudence, in accordance with which a
premature unilateral contractual termination may only be the result of a very substantial
or frequent breach of contract by the counterparty. Where there are more lenient
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REF. FPSD-11458
measures available to remedy the contractual relationship, the parties should readily turn
to these before immediately departing from the contract. Indeed, a premature contractual
termination by one party may only constitute an ultima ratio measure.
32. The Chamber recalled that the reason cited by the Respondent in the aforementioned
correspondence entailing contractual termination was the insufficient sporting
performance of the Claimant. No other potential justification could be observed by the
Chamber from the evidence on file, not least due to the fact that the Respondent had not
provided its own position to the claim within the granted deadline.
33. In accordance with the longstanding jurisprudence of the Chamber, sporting performance
is well-established as not being a just cause for terminating an employment contract
unilaterally before its term, falling short of the standard of ultima ratio as mentioned above.
34. Therefore, the Chamber concluded that the Respondent terminated the Contract without
just cause to the Claimant’s detriment.
ii. Consequences
35. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
36. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to one monthly
salary of MAD 35,000 and the first instalment of the signature bonus of MAD 300,000 under
the Contract, amounting to MAD 335,000 in total.
37. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e.
MAD 335,000.
38. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, 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 the 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.
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REF. FPSD-11458
39. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
40. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
41. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of MAD 870,000 (i.e. the residual value of the Contract,
comprised of 22 salaries between September 2023 and June 2025, and the second
instalment of the signature bonus of MAD 100,000) serves as the basis for the
determination of the amount of compensation for breach of contract.
42. The Chamber here wished to specify that the bonus referred to in the Contract (“prime de
rendement”) was to be considered as a conditional amount, dependent on the number of
matches played in the respective season, thus excluding it from the scope of being
considered as part of the compensation by virtue of its contractual nature.
43. Likewise, taking note of the alleged loss of opportunity of the Claimant by not signing with
the Egyptian club, the Chamber observed that the Claimant submitted no copy of a
concrete employment contract or offer upon which the value of such potential lost
opportunity could be determined. Thus, the Chamber disregarded also this line of
argument for the sake of calculating the compensation due to the Claimant in the present
case, in line with art. 13 par. 5 of the Procedural Rules.
44. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
45. In the case at hand, the Claimant had not found new employment following the contractual
termination. Consequently, he was deemed not to have mitigated his damages.
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REF. FPSD-11458
46. Conclusively, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of
MAD 870,000 to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
47. Lastly, taking into consideration the fact that the Claimant requested no interest, so as not
to contravene the principle of ne eat iudex ultra petita, the Chamber did not award any
interest on the above amount.
iii. Compliance with monetary decisions
48. Finally, taking into account the applicable Regulations, the Chamber 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.
49. In this regard, the DRC 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.
50. Therefore, bearing in mind the above, the DRC 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.
51. 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.
52. The DRC 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
53. The Chamber 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,
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REF. FPSD-11458
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
54. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-11458
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Izuegbu Abonima Boniface, is partially accepted.
2.
The Respondent, Maghreb Association Sportive, must pay to the Claimant the following
amount(s):
- MAD 335,000 as outstanding remuneration;
- MAD 870,000 as compensation for breach of contract without just cause.
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
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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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