Labour Disputes
Texto da decisão
REF FPSD-8452
Decision of the
Dispute Resolution Chamber
passed on 01 February 2023
regarding an employment-related dispute concerning the player Oussama
Darfalou
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
José Luis Andrade (Portugal), Member
Roy Vermeer (Netherlands), Member
CLAIMANT:
Oussama Darfalou, Algeria
Represented by Ludovic Deléchat
RESPONDENT:
Maghreb Association Sportive (MAS), Morocco
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I. Facts of the case
1.
On 16 August 2022, the Algerian player, Oussama Darfalou (hereinafter: the player or the
Claimant), and the Moroccan club, Maghreb Association Sportive (hereinafter: the club or
the Respondent), concluded an employment contract valid as from 14 August 2022 until
30 June 2024 (hereinafter: the employment contract).
2.
According to clause 5 of the employment contract, the club undertook to pay the player
inter alia the following remuneration:
a. For the 2022/2023 season:
• EUR 8,333.33 net as monthly salary, payable at the end of each month; and
• EUR 250,000 net as sign-on fee, payable in three instalments: (i) EUR 150,000
upon signature; (ii) EUR 50,000 on 1 January 2023; and (iii) EUR 50,000 on 1 May
2023.
b. For the 2023/2024 season:
• EUR 8,333.33 net as monthly salary, payable at the end of each month; and
• EUR 250,000 net as sign-on fee for the second season, payable in three
instalments: (i) EUR 150,000 on1 July 2023; (ii) EUR 50,000 on 15 January 2024; and
(iii) EUR 50,000 on 15 May 2024.
c. For the duration of the employment contract: furnished housing, service car, and 3
round-trip tickets per season between Morocco and the Netherlands, France, or
Algeria.
3.
On 9 November 2022, the player put the club in default and requested payment of EUR
103,666.66, corresponding to the salaries of September and October 2022 (i.e., 2 * EUR
8,333.33), plus the balance of the sign-on fee for the first season (i.e., EUR 87,000). He
granted the club a 15 days’ deadline under penalty of termination in line with art. 14bis
of the FIFA Regulations on the Status and Transfer of Players (RSTP).
4.
On 25 November 2022, the player acknowledged receipt of a partial payment by the club
following his previous letter of 9 November 2022 but argued that the sum of EUR
76,066.66 was still overdue. Consequently, the player notified the club of the termination
of the employment contract due to overdue payables.
5.
On 13 January 2023, the player entered into a new employment agreement with the Dutch
club, FC Emmen, valid as from the date of signature until 30 June 2024. Accordingly, the
player is entitled to a monthly salary of EUR 12,000.
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II. Proceedings before FIFA
a. Position of the player
6.
On 1 December 2022, the player lodged a claim in front of FIFA for breach of contract.
7.
According to the player, he performed his obligations under the employment contract,
however the club failed to deliver a significant part of his remuneration. The player
referred to his default notice of 9 November 2022 and argued that the club did only pay
EUR 31,600 (MAD 350,000), leaving a debt of EUR 76,066.66 at the time of the termination
on 25 November 2022.
8.
In light of the above, the player argued that he terminated their employment relationship
with just cause cf. art. 14bis of the FIFA RSTP.
9.
In continuation, he also acknowledged receipt of a second payment of EUR 7,500 (MAD
83,500) on 29 November 2022 i.e., 4 days after the termination of the employment
contract.
10. Against this background, the player requested to be awarded the following amounts:
a. EUR 64,566.66 net as the outstanding remuneration (i.e., part of the sign-on bonus plus
the salaries of September and October 2022), plus 5% interest p.a. as from the due
dates until the date of effective payment; and
b. EUR 533,334 net as compensation for breach of contract cf. art. 17 of the FIFA RSTP,
corresponding to the residual value of the employment contract, plus 5% interest p.a.
as from the date of the termination, broken down as follows:
•
•
•
•
EUR 100,000 net as the balance of the sign-on fee for the 2022/2023 season;
EUR 83,334 net as the 10 remaining salaries for the 2022/2023 season;
EUR 250,000 net as the sign-on bonus for the 2023/2024 season; and
EUR 100,000 net as the total remuneration for the 2023/2024 season.
c. EUR 175,000 net as additional compensation cf. art. 17, par. 1, lit. ii) of the FIFA RSTP,
corresponding to 6 * EUR 29,166.66 (i.e., the pro rata monthly remuneration of the
player).
b. Position of the club
11. The club failed to reply to the player’s claim in spite of being invited to do so.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 01 December 2022 and
submitted for decision on 1 February 2023. Taking into account the wording of art. 34 of
the October 2022 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.
13. 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 FIFA RSTP (October 2022 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 and a Moroccan club.
14. 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 FIFA RSTP (October 2022 edition), and considering that the present claim
was lodged on 1 December 2022, the cited edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
15. 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
16. 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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i. Main legal discussion and considerations
17. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the case at hand pertains to a claim for outstanding
remuneration and compensation for breach of contract lodged by the player against the
club in connection to the employment relationship previously maintained between them.
18. Subsequently, the DRC took into account that the club, for its part, failed to present its
response to the claim of the player, in spite of having been invited to do so. In this way,
the DRC considered that the club renounced its right to defence and thus accepted the
allegations of the player. It equally confirmed that it shall make its decision on the basis
of the evidence and argumentation presented by the Claimant in line with art. 14 par. 1
of the Procedural Rules.
19. Consequently, the Chamber acknowledged that at the time the player put the club in
default EUR 103,666.66 were overdue, hence more than two monthly salaries.
Furthermore, the player granted the club with a reasonable deadline (i.e., 15 days) in
order to remedy its breach, within which it did only pay EUR 31,600 entailing that EUR
76,066.66 remained outstanding.
20. As per its solid jurisprudence, the DRC established that such persistent and substantial
non-compliance of the contractual obligations by the club could justify the unilateral
termination of the contract as well as it could hold the club liable for breach of contract.
Thus, the Chamber decided that the player had just cause to terminate the employment
contract in line with art. 14bis of the Regulations.
ii. Consequences
21. 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
club.
22. In doing so, the DRC highlighted that at the time the player’s notice was sent, the total
sum of EUR 103,666.66 net was overdue, broken down as follows:
•
•
•
EUR 87,000 as the balance of the sign-on fee, due by 16 August 2022;
EUR 8,333.33 as the salary of September 2022, due by 30 September 2022; and
EUR 8,333.33 as the salary of October 2022, due by 31 October 2022.
23. Thereafter, the player acknowledged having received a total of EUR 39,100 (i.e., EUR
31,600 plus EUR 7,500), which the DRC considered that should be offset against the oldest
part of the debt i.e., the sign-on fee.
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24. It followed, in the Chamber’s view, that the player shall be entitled to the balance of EUR
64,566.66 net as outstanding remuneration, plus 5% interest p.a. as from the due dates
of each instalment until the date of effective payment. In particular, the DRC underscored
that the interest should arise as follows:
• over EUR 47,900 (i.e., EUR 87,000 minus EUR 39,100), plus 5% interest as from 17
August 2022;
• over EUR 8,333.33, plus 5% interest as from 1 October 2022; and
• over EUR 8,333.33, plus 5% interest as from 1 November 2022.
25. 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.
26. 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.
27. 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.
28. 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
employment contract from the date of its unilateral termination until its end date.
Consequently, the Chamber concluded that the amount of EUR 533,333.33 net serves as
the basis for the determination of the amount of compensation for breach of contract,
broken down as follows:
• EUR 100,000 as the balance of the sign-on fee for the 2022/2023 season;
• EUR 83,333.33 as the balance of the salaries for the 2022/2023 season;
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• EUR 250,000 as the sign-on fee for the 2023/2024 season; and
• EUR 100,000 as the salaries for the 2023/2024 season.
29. 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.
30. Indeed, the player found employment with FC Emme. In accordance with the pertinent
employment agreement, the player was entitled to EUR 12,000 per month. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of EUR
210,967.74, that is the pro rata salary of January 2023 plus the salaries from February
2023 until June 2024.
31. 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.
32. In this respect, the DRC decided to award the amount of additional compensation of EUR
25,000, i.e., three times the monthly remuneration of the player of EUR 8,333.33.
33. 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 347,365.59 net to the player (i.e., EUR 533,333.33 minus EUR 210,967.74 plus EUR
25,000), which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
34. 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 1 December 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
35. 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
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
36. 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.
37. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
38. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
39. 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
40. 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.
41. 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.
42. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Oussama Darfalou, is partially accepted.
2.
The Respondent, Maghreb Association Sportive (MAS), has to pay to the Claimant the
following amounts:
- EUR 47,900 net as outstanding remuneration plus 5% interest p.a. as from 17 August
2022 until the date of effective payment;
- EUR 8,333.33 net as outstanding remuneration plus 5% interest p.a. as from 1 October
2022 until the date of effective payment;
- EUR 8,333.33 net as outstanding remuneration plus 5% interest p.a. as from 1
November 2022 until the date of effective payment; and
- EUR 347,365.59 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 1 December 2022 until the date of effective payment.
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.
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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).
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