Labour Disputes
Texto da decisão
REF. FPSD-13297
Decision of the
Dispute Resolution Chamber
passed on 3 June 2024
regarding an employment-related dispute concerning
the player Mohamed El Mehdi Boukassi
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Khadija Timera (Senegal), member
Laurel Vaurasi (Fiji), member
CLAIMANT / COUNTER-RESPONDENT:
Mohamed El Mehdi Boukassi, Algeria
Represented by Mr Renaud Duchene
RESPONDENT / COUNTERCLAIMANT:
Raja Athletic Club, Morocco
Represented by Sport Makers
INTERVENING PARTY:
Tadamon Sour, Lebanon
Represented by Mr Ralph Charbel
pg. 2
REF. FPSD-13297
I. Facts of the case
1.
On 26 July 2022, the Algerian player, Mohamed El Mehdi Boukassi (hereinafter: the Claimant
or player), and the Moroccan club, Raja Athletic Club (hereinafter: the Respondent or club)
signed an employment contract (hereinafter: the Contract) valid as from the date of
signature until the end of the sporting season 2023/2024 (corresponding to the information
contained in the FIFA Transfer Matching System: 30 June 2024).
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia the following remuneration:
3.
-
EUR 100,000 net « signature bonus » guaranteed each season, payable as follows:
o EUR 30,000 net at the beginning of the season;
o EUR 40,000 net during February 2023/2024 respectively;
o EUR 30,000 net at the end of the season.
-
EUR 2,000 net monthly salary
-
Match bonuses according to the internal club table;
-
Performance bonuses as follows:
o EUR 10,000 league winners’ bonus;
o EUR 15,000 African Champions League winners’ bonus;
o EUR 15,000 Arabic Cup winners’ bonus.
On 24 February 2023, the Respondent and the Claimant allegedly mutually signed /
stamped a document labelled “Attestation” (hereinafter: the Undertaking) in which the
following was agreed upon:
“I, the undersigned, Mr Mehdi Boukassi, holder of Algerian passport with number xxxxx, player
of RCA, hereby confirm that the instalments of the signature bonus stipulated under the Contract
shall be continued to be paid by Raja Club Athletic during my loan period, either in the season
2022/2023 or 2023/2024.”
4.
On 3 March 2023, the Claimant was loaned out to the Finnish club FC Haka (hereinafter:
the Loan Club) until 16 November 2023 (hereinafter: the Loan Agreement).
5.
Pursuant to the Loan Agreement, the Claimant, Respondent and Loan Club agreed inter
alia as follows:
“The temporary loan transfer is free, that is, FC Haka does not pay Raja a separate
compensation. Raja and the player have mutually agreed on the compensation between them.”
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REF. FPSD-13297
6.
At an unspecified date, the Claimant allegedly attempted to call the Respondent to request
the last two instalments of the signature bonus for the season 2022/2023.
7.
On 4 May 2023, the Claimant sent an informal reminder as to the payment of the last two
instalments of the signature bonus for the season 2022/2023.
8.
On 27 October 2023, the Claimant sent a default notice to the Respondent for the amount
of EUR 100,000 net, corresponding to the last two instalments of the signature bonus for
the 2022/2023 season, and the first instalment of the signature bonus for the 2023/2024
season. The Claimant granted a deadline of 15 days to the Respondent to be able to remedy
the alleged breach.
9.
On 1 December 2023, the Claimant unilaterally terminated the Contract.
10. On 7 January 2024, the Claimant signed an employment contract with the Lebanese club
Tadamon Sour (hereinafter: the New Club) valid as from the date of signature until
7 June 2026, and with the following financial conditions during the overlapping period with
the Contract:
-
Signature bonus / advance payment: USD 27,500 payable on 18 January 2024
-
USD 7,700 on 15 February 2024;
-
USD 7,700 on 15 March 2024;
-
USD 7,700 on 15 April 2024;
-
USD 7,700 on 15 May 2024;
-
USD 7,700 on 15 June 2024;
-
USD 26,000 on 15 June 2024 as signature bonus / advance payment for the
2024/2025 season.
pg. 4
REF. FPSD-13297
II. Proceedings before FIFA
11. On 9 January 2024, the Claimant filed the claim at hand before FIFA.
12. On 11 February 2024, the Respondent lodged a counterclaim against the Claimant.
13. A brief summary of the position of the parties is detailed in continuation.
a. Position of the Claimant / Counter-Respondent
14. In his claim, the player argued that he had a just cause to terminate the Contract due to
overdue payables, given that the Respondent failed to pay several instalments of the
signature bonus that amounted to an outstanding remuneration of EUR 100,000 net.
15. The Claimant specified that, due to the modest amount of the monthly salary, the failure
to pay the signature bonus instalments was sufficient to meet the threshold set by ultima
ratio, and to allow the Claimant to terminate the Contract with just cause.
16. The Claimant equally emphasised that the obligation to pay is undisputed since the
Respondent undertook in writing to continue paying the signature bonus(es) throughout
the loan period, as the Undertaking signed by the Claimant and stamped by the
Respondent is clear in this regard.
17. The Claimant equally took note of the arbitration clause in the Contract and argued that
the Moroccan NDRC was not competent to hear the present disputes on account of the
specific wording of the clause – only conferring jurisdiction in disputes concerning the
“execution of the Contract” and not its termination.
18. Consequently, the Claimant formulated the following request for relief:
-
EUR 100,000 as outstanding remuneration;
EUR 85,000 as compensation;
Interest as from the respective due dates.
b. Counterclaim and position of the Respondent / Counterclaimant
19. According to the Respondent, the Claimant had no just cause to terminate the Contract,
given that there were no outstanding amounts at the date of termination.
20. The Respondent specified that it never undertook to pay the Claimant the signature bonus
instalments that were due during the loan period, given that he was not rendering services,
and that the Undertaking signed on 24 February 2024 was a forgery.
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REF. FPSD-13297
21. The Respondent equally asserted that the wording of the Undertaking reveals that the
document is forged, as it is addressed in 1st person by the Claimant, in which he unilaterally
declares that he is entitled to receive the amounts, and that it is not on an official document
containing the official letterhead of the Respondent.
22. The Respondent, therefore, argued that, in the absence of overdue payables on the date
of termination, the Claimant had no just cause to terminate the Contract prematurely,
hence giving rise to liability for compensation.
23. Therefore, the following request for relief was formulated by the Respondent as part of its
counterclaim:
-
EUR 82,000 as compensation for breach of contract;
EUR 50,000 as additional compensation for loss of opportunity in obtaining a
transfer sum;
Interest as from 1 December 2023;
Sporting sanctions on the player.
c. Replica of the Claimant/Counter-Respondent
24. Firstly, the Claimant argued that the counterclaim should be held as inadmissible,
considering that it was allegedly filed outside the time limit granted by FIFA.
25. As to the merits, Claimant emphasised that the Undertaking was not forged, and remitted
the original version via post to FIFA.
26. The Claimant argued it would be illogical for him to renounce an amount that
corresponded to more than 80% of his annual remuneration and equally to have to move
to a “geographically and culturally distant country”.
27. The Claimant equally enclosed as evidence an e-mail exchange with between the Loan Club
and the Respondent in which the former communicated its interest to loan the Claimant,
and in which it confirmed that it would only like to loan him under the condition that the
Respondent continued to pay the Claimant’s salary – a condition which the Respondent
allegedly expressly confirmed in the reply to the offer via e-mail.
28. Consequently, the Claimant reiterated his request for relief.
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REF. FPSD-13297
d. Position of the New Club / Intervening Party
29. The New Club outlined that the Claimant had a clear just cause to terminate the Contract,
and that neither the Claimant, nor itself, bear any liability for breach of contract towards
the Respondent.
30. The New Club equally stressed that it did not, in any event, induce the Claimant, and
submitted a declaration by the Claimant which he signed “under oath”, in which the latter
confirmed that he was not induced or pressured at all by the New Club to prematurely
terminate his Contract.
pg. 7
REF. FPSD-13297
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
31. 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 9 January 2024 and submitted
for decision on 3 June 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.
32. 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 February 2024 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Algerian player,
a Moroccan club and a Lebanese club as intervening party.
33. 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 (February 2024 edition), and
considering that the present claim was lodged on 9 January 2024, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
34. 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
35. 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-13297
i. Main legal discussion and considerations
36. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the obligation to pay
certain amounts under the Contract, as well as the lawfulness of the contractual
termination of the Claimant.
37. In this context, the Chamber acknowledged that it its task was to determine whether the
Claimant was indeed entitled to receive the signature bonus while he was on loan, and,
based thereon, whether he had a just cause to terminate the Contract prematurely.
38. The Chamber then revisited the submissions of the parties. On one hand, the Chamber
recalled that the Claimant insisted on his right to receive the signature bonus payments,
despite being away on loan, as this was contractually agreed upon (and established via the
Undertaking. Based on this, the Claimant asserted that he had a just cause to terminate
the Contract before its term due to overdue payables.
39. The Respondent, for its part, argued that the Claimant terminated the Contract without
just cause, stating that the former was not entitled to receive the signature bonus whilst
he was on loan, that the respective Undertaking was forged by the Claimant himself, and
that there was no outstanding remuneration due when the Claimant terminated the
Contract unilaterally.
40. As for the New Club, many of the arguments of the Claimant were echoed, and adding that,
as the Claimant signed the New Contract “under oath” that he was not induced or
pressured to prematurely terminate his previous Contract.
41. At this stage, the Chamber deemed it important to recall the principle of the burden of
proof, as laid down in art. 13 par. 5 of the Regulations, pursuant to which a party that
asserts a certain fact also bears the burden of proving its veracity.
42. With these things established, the Chamber went on to consider the matter as to its merits,
in particular, whether or not the Claimant was indeed entitled to continue receiving
payments corresponding to the “signature bonus” during his time on loan.
43. The Chamber deemed it significant that the Claimant had submitted an original version of
the Undertaking, which allegedly established that these payments ought to continue during
the loan period. The Chamber noted the Respondent’s serious allegation of forgery in this
respect.
44. In this respect, the Chamber deemed appropriate to remind the parties that, as a general
rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such
as the one of alleged falsified signatures of documents, and that such affairs fall into
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REF. FPSD-13297
jurisdiction of the competent national criminal authority. Notwithstanding, after a
thorough analysis of the evidence provided by the parties, the Chamber concluded that, in
spite of the technical remarks made by the club, there was no substantial evidence that the
document was forged. In particular, the stamp and signature stating “pour accord”
appeared to be in live ink.
45. Consequently, the Chamber unanimously decided to set aside the club’s argumentation in
this regard.
46. The Chamber also considered it noteworthy that, pursuant to the Loan Agreement, the
Respondent and the Claimant “agreed mutually” as to the remuneration to which he is
entitled during the loan period – which supports the argument that such an Undertaking
would have been concluded.
47. The Chamber also wished to point out that the modest sum of the monthly salary, in
comparison to the signature bonus, suggests on a prima facie basis that the Claimant would
not simply waive entitlement thereto in exchange for no consideration whatsoever.
48. The Chamber hereby emphasised that, as opposed to the monthly salary which is, by its
nature, dependent on the rendition of services, the “signature bonus” is a guaranteed
payment.
49. The Chamber also took into consideration the e-mail exchanges between the Respondent
and Loan Club, in which it became evident that it was not him who requested to be loaned
out. This supported the line of reasoning that he would not have voluntarily waived any
entitlement under the Contract.
50. Lastly, the Chamber wished to raise the point concerning the default notice issued by the
Claimant. The Respondent failed to reply to such default notice, in which the Claimant
clearly made reference to the signature bonus.
51. If the Respondent indeed believed that there was no undertaking, and that the signature
bonus would not be payable during the loan period, it would have indicated this in a formal
reply. The Respondent’s failure to contest this at the relevant time further points to the
actual intention of the parties.
52. Based on the above, the Chamber was able to conclude that the parties likely mutually
agreed upon the continuation of the payment of the signature bonus, despite the
Claimant’s absence from the Respondent on loan. Not only do the intentions of the parties
appear clear contextually, but also the document sent in by the Claimant as an original
version indeed appears authentic.
53. With this established, the Chamber moved on to consider the lawfulness of the contractual
termination by the Claimant.
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REF. FPSD-13297
54. The Chamber recalled that it had remained undisputed that the Claimant was owed
EUR 100,000 in signature bonus instalments, corresponding to 50 monthly salaries, based
on a pro-rata calculation.
55. Furthermore, the Chamber noted that the Claimant has provided written evidence of
having put the Respondent in default on 27 October 2023, i.e., at least 15 days before
unilaterally terminating the contract on 1 December 2023.
56. The Chamber underscored that the above conditions meet the formal requirements of
art. 14bis par. 1 RSTP – in accordance with which, if a club unlawfully fails 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).
57. Thus, the Chamber concluded that the Claimant had a just cause to prematurely terminate
the Contract.
ii. Consequences
58. 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.
59. 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 EUR 100,000,
i.e., the three instalments of the signature bonus.
60. 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.,
EUR 100,000.
61. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the following dates:
-
On the amount of EUR 40,000, as from 1 March 2023 until the date of effective
payment;
-
On the amount of EUR 30,000, as from 1 July 2023 until the date of effective payment;
-
On the amount of EUR 30,000, as from 2 July 2023 until the date of effective payment.
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62. 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.
63. 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.
64. 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.
65. 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 EUR 84,000 (i.e., the residual value of the Contract) serves as
the basis for the determination of the amount of compensation for breach of contract.
66. 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.
67. Indeed, the player found employment with the New Club. In accordance with the pertinent
employment contract, the player was entitled to a total remuneration of USD 92,000, or
approximately EUR 85,733 during the overlapping period between the Contract and New
Contract. Therefore, the Chamber concluded that the player fully mitigated his damages.
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REF. FPSD-13297
68. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e., overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
69. In this respect, the DRC decided to award the amount of additional compensation of
EUR 31,000, i.e., three times the average monthly remuneration of the player when taking
into consideration monthly salaries of EUR 2,000 and the signature bonus of EUR 100,000
corresponding to the following season (2023/2024).
70. Consequently, 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 EUR 31,000 to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
71. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 2 December 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
72. 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.
73. 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.
74. 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.
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REF. FPSD-13297
75. 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.
76. 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
77. 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,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
78. 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.
79. 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-13297
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Mohamed El Mehdi Boukassi, is partially
accepted.
2.
The Respondent / Counterclaimant, Raja Athletic Club, must pay to the Claimant / CounterRespondent the following amount(s):
- EUR 100,000 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 40,000 as from 1 March 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 30,000 as from 1 July 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 30,000 as from 2 July 2023 until the date of
effective payment.
- EUR 31,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 2 December 2023 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counterclaimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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 / Counterclaimant 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.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
pg. 15
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8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13297
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
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