Dispute Resolution Chamber
Texto da decisão
REF 20-00922
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021
regarding an employment-related dispute concerning the player Carlos Manuel dos
Santos Fortes
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT 1 / RESPONDENT 2:
Ittihad Riadhi de Tanger, Morocco
CLAIMANT 2 / RESPONDENT 1:
Carlos Manuel dos Santos Fortes, Portugal
Represented by 14 Sports Law, Mr Carlos Cassanio Neves & Mr Frederico
Bensimon
RESPONDENT 3:
UD Vilafranquense, Portugal
Page 2 of 19
REF 20-00922
I.
FACTS OF THE CASE
1.
On 6 January 2020, the Portuguese player, Carlos Manuel dos Santos Fortes (hereinafter:
player or Claimant) and the Moroccan club, Ittihad Riadi de Tansfer (hereinafter: club or
Respondent) concluded an employment contract valid from 1 January 2020 until 30 June
2020.
2.
In accordance with art. 5 of the contract, the player was entitled to receive the following
remuneration and fringe benefits:
3.
A signature bonus of Moroccan Dirhams (MAD) 490,000, payable upon the
execution of the contract and its respective registration upon the TMS platform
system;
A monthly salary of MAD 80,000, payable on the last day of each month;
Monthly rent of EUR 400 net;
A two-way airplane ticket;
A performance bonus, due in accordance with the bonus regulations of the club;
A match bonus, due in accordance with the bonus regulations of the club.
According to art. 9 of the contract:
“En cas de résiliation unilatérale avant terme non motivée par la faute grave de l’autre parties ou
par un cas de force majeure, et dans ce cas uniquement, des dommages-intérêts dont le montant
équivaut au montant des rémunérations correspondant à la période allant de la date de la
résiliation jusqu’au terme fixé par le présent contrat, seront dus à la partie qui n’est pas à l’origine
de la résiliation unilatérale ».
Free translation into English :
"In the event of unilateral termination before term not motivated by the serious breach of the
other party or by a case of force majeure, and in this case only, compensation, the amount of
which is equivalent to the amount of remuneration corresponding to the period from the date of
termination to the term fixed by this contract , will be due to the party who did not cause the
unilateral termination."
4.
On 15 May 2020,f the club sent the player a default notice by bailiff at his domicile in
Morocco. Such default notice stated that the player has been absent from training since 15
March 2020 and this absence constitutes a serious breach of his contractual obligations.
5.
On 22 May 2020, the player’s legal representative put the club in default and stated the
following:
Page 3 of 19
REF 20-00922
“The Club duly paid the signature bonus. However, on the present date, Mr. Fortes has
overdue and outstanding salaries corresponding to 4 (four) months – January, February,
March and April, which were due and payable on 31 January 2020, 29 February 2020, 31
March 2020 and 30 April 2020. In 8 days, another month will accrue and the Club will be
the debtor of 5 (five) monthly salaries”.
6.
The player granted the club 15 days to remedy the default.
7.
On 27 May 2020, the club replied to the player’s default notice by stating that the latter
has no legal effect since it was sent without a power of attorney. The club asked for a
power of attorney, a copy of the player’s contract and for the player’s bank details.
Furthermore, the letter indicated that the deadline of 15 days mentioned in the player’s
letter dated 22 May 2020 would only start upon receipt of the requested documents.
8.
In reply thereto, the player stated in a letter dated 1 June 2020 that the player does not
hold a bank account in Morocco due to the pandemic and that he notes that the condition
of holding a bank account in Morocco did not seem to be a constraint when the club paid
the signing on fee. The player granted the club another deadline of 15 days to proceed with
the payment of his outstanding remuneration and indicated his bank details.
9.
On 4 June 2020, the club replied to the player’s letter dated 1 June 2020 as follows:
“In view of the state of health emergency in Morocco as of 23 March 2020 requiring us to
confine ourselves at home from March to June 2020, the club has revised all the financial
due of its players and their staff as stipulated by the FIFA guidelines issued on 18 March
2020 in connection with the Covid-19.
Mr DOS SANTOS FORTES CARLOS MANUEL will receive the following monthly payments:
January: 80,000.00 Dhs,
February: 80,000.00 Dhs ,
March: 40,000.00 Dhs,
April: 40,000.00 Dhs,
May: 8,000.00 Dhs ,
June: 8,000.00 Dhs
Total: 256,000.000 Dhs;
Rent: 4000.00 Dhs for each month from January to June 2020 for a total of 24,000.00 Dhs”
10.
Furthermore, the club underlined that all players and staff who hold a bank account in
Morocco have received their salaries from January to April 2020, however the player’s
salaries were not yet paid since he does not hold an account in Morocco and he is not in
his domicile in Morocco. The club also mentioned that it was not in a position to pay the
player’s remuneration in a foreign bank account since this would require an authorisation
from the Currency Exchange Office, which is situated in Rabat, and that it is currently
impossible to travel to Rabat due to the pandemic. The club underlined that in accordance
with the contract, the player was to receive his salary in the local currency and he must be
paid at his place of work. In conclusion, the club reiterated its request that the salary be
Page 4 of 19
REF 20-00922
paid in a Moroccan bank account, and requested the player to resume home training or in
person training under the careful supervision of the coaching staff.
11.
On 9 June 2020, the player reiterated his position that the signing on fee was paid on a
foreign account and affirmed that the contract mentions amounts in Euro. Equally, the
player underlined that the club has failed to inform the player, throughout the duration of
the contract, that he should have opened a bank account in Morocco.
12.
The player added the following:
“(…) regarding the alleged absence of Mr Fortes and your at best implied request for his
return to Morocco, Mr Fortes would like to remind the Club that he returned to his home
country of Portugal by suggestion and with the express consent of the Club and that, due
to the current worldwide pandemic, Mr Fortes cannot return to Morocco for the time
being”.
13.
On 15 May 2020, the club sent the player another letter wherein it mainly reiterated its
previous position and insisted on the fact that the contract mentions amounts in Dirhams
with the exception of the rent. Furthermore, the club highlighted that the player has been
absent since the second half of March 2020. The club reminded the player that the contract
is valid until 30 June 2020 or until the last match of the championship should this match
take place after 30 June 2020.
14.
On 19 June 2020, the player terminated the contract in writing with reference to art. 14bis
of the RSTP and to his previous default notice letters.
15.
On 23 June 2020, the club responded to the player’s termination letter and stated that the
termination was without just cause.
16.
Following the unilateral termination of the contract by the player, the latter did not sign any
new contract until 30 June 2020. The player concluded a contract with the Portuguese club,
UD Vilafranquense, valid as from 1 July 2020.
II.
PROCEEDINGS BEFORE FIFA
17.
On 30 June 2020, the club filed a claim against the player for compensation for breach of
contract. On 24 September 2020, the player also filed a claim against the club for
outstanding remuneration and compensation for breach of contract. In this regard, we shall
emphasise that, despite being invited to present its position as to the club’s claim for breach
of contract against the player, UD Vilafranquense did not reply.
18.
A brief summary of the position of the parties is detailed below.
Page 5 of 19
REF 20-00922
a.
Claim of the club
19.
According to the club, the player duly received the signing on fee and the club asked the
player to open a bank account in Morocco for the payment of his salary and other benefits,
but the player failed to do so.
20.
Thereafter, the player started working for the club with little enthusiasm. Whereas he
participated in several official matches, as of February 2020 the player expressed a lack of
interest and was constantly travelling between Morocco and Portugal without the club’s
authorisation.
21.
Indeed, it appears that the player was absent during the following days:
- February 2020: exiting Morocco: 12, 23; returning to Morocco: 9, 13, 26
- March 2020: exiting Morocco: 4, then 15 without returning; returning to Morocco: 5
22.
Regarding the player’s absence between 15 and 19 March 2020, the club underlined that
such absence occurred even before Morocco declared a state of emergency due to the
Covid-19 pandemic.
23.
As of 20 March 2020, the state of emergency was announced in Morocco and all players
were expected to conduct a home training under the supervision of the coaching staff. The
player, however, did not train according to the club’s instructions since he vanished from
Morocco as of 15 March 2020. His absence from his domicile in Morocco was verified with
a default notice which was sent to him by a bailiff on 15 May 2020.
24.
With its letter dated 21 May 2020, the player was requested to present himself before the
club’s Disciplinary Commission on 28 May 2020 to justify his absence. Since the player did
not reply to the summons, the Disciplinary Commission issued a decision, according to
which the payment of the player’s remuneration and other benefits was suspended as from
16 March 2020 and the player’s absence was considered a serious breach of his contractual
obligations. The Disciplinary Commission declared that the player must pay damages and
compensation for breach of contract in the total amount of MAD 594,394.50.
25.
The requests for relief of the club were the following:
- DHS 594,394.50
- “Grant a period of payment of these allowances to the club with possible late payment
allowances”
- Sporting sanctions on the player in accordance with the Regulations on the Status and
Transfer of Players.
Page 6 of 19
REF 20-00922
b.
Claim of the player
26.
According to the player, the club never proceeded to the payment of his remuneration and
rent allowance between January and May 2020 with the exception of the signing on fee.
27.
The player referred to his default notices and deemed that he had just cause to terminate
the contract in accordance with art. 14bis of the Regulations on the Status and Transfer of
Players.
28.
Furthermore, replying to the club’s arguments in the exchange of correspondence between
May and June 2020, the player highlighted that the club cannot use the pandemic as an
excuse since the club was already in default of payment of his salaries of January and
February 2020.
29.
The player, moreover, held that he never received the player’s summons for him to return
to Morocco.
30.
With respect to the fact that the player did not hold a bank account of Morocco, the player
stated that the club first raised the issue only after he put the club in default. Furthermore,
this was not an impediment for the club to pay the signing on fee. Equally, the player
underlined that any administrational and financial difficulties for a club to proceed to the
payment of a player’s salary, which constitutes a club’s main obligation, cannot be invoked
as an excuse for non-payment.
31.
In any case, the player emphasised that the pandemic made it impossible for him to open
a bank account in Morocco, since he could not fly back to the said country.
32.
The requests for relief of the player were the following:
- Outstanding remuneration: EUR 37,500 as salaries from January until May 2020, as well
as EUR 2,000 as rent allowance from January until May 2020, plus 5% interest as of the
respective due dates,
- Compensation for breach of contract: EUR 7,900 as residual value of the contract, plus
5% interest as of 19 June 2020
- Sporting sanctions on the club
c.
33.
Reply of the club to the player’s claim
The club insisted on the fact that it had contacted the player to request him to open a bank
account in Morocco and produced a letter dated 4 March 2020 requesting him to do so.
Page 7 of 19
REF 20-00922
34.
With respect to the payment of the signing on fee, the club explained that it proceeded to
such payment despite the fact that the player did not hold a bank account in Morocco, this
with the purpose of the player being in a position to open such bank account.
35.
The club emphasised that the player never informed them of his bank details prior to his
default notice sent by his legal representative on 22 May 2020.
36.
The club alleged that the player purposefully did not communicate his bank details to the
club in order to put the club in a position of breaching its financial obligations, thereby
entitling the player to terminate his contract. The club also mentioned that according to
Moroccan legislation, foreign employees are entitled to open a local bank account valid for
6 months by simply presenting a copy of their employment contract and of their passport.
37.
The club deems that, in light of the impossibility for the club to proceed to the payment of
the player’s remuneration and the player’s orchestrated omission to provide his bank details,
they were discharged from such obligation in accordance with art. 119 of the Swiss Code
of Obligations.
d.
Reply of the player to the club’s claim
38.
In reply to the club’s claim, the player emphasised that the club’s formal request consists
only on a petition to confirm the club’s internal decision which was not even contested or
appealed by the only affected party (i.e. the player) since (i) he was never informed about
any disciplinary proceedings which finally culminated in the decision being subject to
confirmation in the present proceedings, (ii) nor did he have the opportunity to defend
himself during such internal disciplinary proceedings.
39.
The player deems that the club’s request does not fall within the scope of art. 22b) of the
Regulations on the Status and Transfer of Players since it is a request for approval of a
sanction with a disciplinary character.
40.
The player added that the club’s Disciplinary Committee is the internal jurisdictional body
who took the disciplinary decision against the player. Consequently, the club is not an
“aggrieved party having something at stake” nor is the club the holder or proprietary of “an
interest worthy of protection”. In other words, the club lacks standing to sue.
41.
As to the club’s arguments on the merits of the dispute, the player first held that the club
failed to prove that he was absent during some specific days in February and March 2020.
42.
The player held that due to the pandemic, the club informed all foreign players via
WhatsApp group chat that they could travel to their home countries, at least until the
League’s restart, and wait for further instructions from the club.
Page 8 of 19
REF 20-00922
43.
Following the club’s instructions, the player flew from Morocco to Portugal on 15 March
2020.
44.
According to the player, the club knew that the player was absent from Morocco (as the
majority of his foreign teammates) due to the Covid-19 outbreak, not only because it had
allowed such absence but also due to his continuous participation in the virtual training
sessions organized by the Club and held via Zoom during the months of March, April and
May while confined at his domicile in Portugal.
45.
Knowing that the player was not in Morocco, the player finds that the club sent him their
default notices at his domicile in Morocco in bad faith.
46.
As to the disciplinary proceedings held against him, the player highlighted that he had no
knowledge of these at the time they were being conducted. Therefore, these were
conducted in violation of his right of defence.
47.
Consequently, the player maintained his requests for relief.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
48.
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 30 June 2020 and submitted
for decision on 6 May 2021. Taking into account the wording of art. 21 of the January 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
49.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), the Dispute
Resolution Chamber would, in principle, be competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Portuguese player and a Moroccan club.
50.
This being said, the Chamber first took note of the player’s challenge of FIFA’s competence
with respect to the club’s claim, since, allegedly, such claim is not employment-related and
merely consists in a request for the enforcement of the decision of the club’s Disciplinary
Commission.
Page 9 of 19
REF 20-00922
51.
Having duly analysed the player’s arguments as to the Chamber’s competence to deal with
the club’s claim, the latter deciding body decided that such arguments must be rejected.
Indeed, the present dispute and the club’s claim is undoubtedly employment-related as it
derives from the performance of the employment contract concluded between the parties.
52.
In view of the above, the Chamber concluded that the club’s claim is admissible.
53.
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 Player (edition February 2021), and
considering that the present claim was lodged on 30 June 2020, the June 2020 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
Burden of proof
54.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
55.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
Merits of the dispute
56.
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
57.
Prior to the analysis of the facts and arguments of the parties, the Chamber recalled that
the player had invoked the club’s lack of standing to sue, since the club, which seeks to
obtain a confirmation of its Disciplinary Commission’s decision against the player, may not
be considered as an affected party.
58.
In this regard, the Chamber held that it cannot give credit to the player’s arguments as to
the club’s standing to sue. Indeed, irrespective of the decision of its Disciplinary Committee,
the club is to be considered an affected party in light of the player’s unilateral breach of the
Page 10 of 19
REF 20-00922
contract. It is therefore the DRC’s conviction that the club had standing to sue the player in
the present proceedings.
i. Main legal discussion and considerations
59.
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 lawfulness of the player’s
unilateral termination of the contract on 19 June 2020.
60.
In this context, the Chamber acknowledged that it must analyse the parties’ respective
arguments as to the reasons for the player’s unilateral termination of the contract.
61.
The club held that the player never expressed much interest for the contractual relationship,
returning to Portugal on a regular basis without the club’s knowledge. As of 15 March
2020, the player left Morocco and never returned to the club. In light of the player’s
absence, the club’s Disciplinary Commission issued a decision, according to which the
payment of the player’s remuneration and other benefits was suspended as from 16 March
2020 and the player’s absence was considered a serious breach of his contractual
obligations.
62.
With respect to the player’s remuneration, the club emphasised that it had duly paid the
signing on fee but had repeatedly asked the player to open a bank account in Morocco in
order to proceed to the payment of his salary, which the player never did. Since the player
did not comply with such request, the club had been unable to proceed to the player’s
salaries from January until April 2020.
63.
Finally, the club held that, in response to the player’s default notice, it had explained to the
player that it would have to reduce his salary in light of the state of emergency which was
declared in Morocco.
64.
The player, for his part, held that the club had been in default of payment of his salary since
January 2020. Furthermore, he was never informed, at the start of the contractual
relationship, that he had to open a bank account in Morocco; this proved impossible later
on as the Covid-19 pandemic meant he could not return to Morocco.
65.
The player further alleged that the club was well aware of the fact that he had returned to
his home country, since it was the club itself which had instructed him to do so in mid
March 2020.
66.
The player, therefore, denied being absent without any authorisation.
67.
The player concludes that, in light of the outstanding remuneration due to him and in the
absence of a valid reason not to pay him such remuneration, he had had just cause to
terminate the contract.
Page 11 of 19
REF 20-00922
68.
Having recalled the parties’ diverging positions with respect to the player’s unilateral breach
of the contract, the Chamber started its analysis with player’s claim regarding outstanding
remuneration due at the time of the termination.
69.
In this regard, the Chamber underlining that, uncontestably, the club had failed to pay the
player’s remuneration, precisely January and February 2020, already before the start of the
pandemic.
70.
With respect to the club’s allegations that the player was required to open a bank account
in Morocco, we note that the contract does not state such obligation, nor is there any
evidence that the club requested the player to do so before 4 March 2020. Furthermore,
the Chamber noted that the club itself had emphasised having paid the signing on fee to
the player’s foreign account. In the Chamber’s view, it is within a club’s due diligence to
ensure that it will be in a position to exercise its financial obligations in a timely manner. In
this sense, assuming the player indeed received the club’s letter dated 4 March 2020, the
club should have enquired about the player’s bank details sooner.
71.
Furthermore, with respect to the club’s notification to the player dated 4 June 2020
whereby the latter informed the player that it would reduce his salaries from March onwards
(cf. par. 8 onwards), the DRC recalled that, in light of the worldwide Covid-19 outbreak,
FIFA issued a set of guidelines, the Covid-19 Football Regulatory Issues, which aim at
providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June
2020, FIFA issued an additional document, the FIFA Covid-19 FAQ, which provides
clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory
matters. Those two documents will hereinafter be referred to as “the FIFA Covid-19
guidelines”.
72.
In continuation, the Chamber emphasised that the FIFA Covid-19 guidelines said guidelines
aim, in particular, at tackling the situation regarding agreements which cannot be
performed as the parties originally anticipated. In this regard, the guidelines identify
circumstances under which a unilateral variation of the agreement may be justified.
Precisely, the guidelines mention the following:
“Unilateral decisions to vary agreements will only be recognised where they are made in
accordance with national law or are permissible within CBA structures or another collective
agreement mechanism.
Where:
a. clubs and employees cannot reach an agreement, and
Page 12 of 19
REF 20-00922
b. national law does not address the situation or collective agreements with a players’ union
are not an option or not applicable,
Unilateral decisions to vary terms and conditions of contracts will only be recognised by
FIFA’s Dispute Resolution Chamber (DRC) or Players’ Status Committee (PSC) where they
were made in good faith, are reasonable and proportionate.
When assessing whether a decision is reasonable, the DRC or the PSC may consider, without
limitation:
a. whether the club had attempted to reach a mutual agreement with its employee(s);
b. the economic situation of the club;
c. the proportionality of any contract amendment;
d. the net income of the employee after contract amendment;
e. whether the decision applied to the entire squad or only specific employees.
Alternatively, all agreements between clubs and employees should be “suspended” during
any suspension of competitions (i.e. suspension of football activities), provided proper
insurance coverage is maintained, and adequate alternative income support arrangements
can be found for employees during the period in question”.
73.
Applying the aforementioned principles to the matter at hand, the Chamber first noted that
the club had not provided any evidence that the salary reduction notified to the player was
in accordance with national law or a collective bargaining agreement. Equally, the club
could not prove the reasonableness of such decision, nor its proportionality. Indeed, it is
clear that the parties had not made any agreement with respect to a salary reduction.
Moreover, no indications were given as to whether such offer had been made to all players
of the team, nor as to the club’s financial situation as a result of the Covid-19 outbreak.
More importantly, the DRC noted that the club’s notification dated 4 June 2020 came at a
very late stage, as the club had not paid any salaries to the player since January 2020.
Consequently, the DRC unanimously concluded that the salary reduction could not be seen
as having been made in good faith. In particular, the Chamber pointed out that, in any
case, such alteration to the contractual terms cannot be made retroactively.
74.
In view of the abovementioned considerations, the DRC decided that the club could not
alter the contractual terms and therefore the salaries due to the player between March and
June 2020 were to be paid fully and were outstanding at the time the player terminated
the contract.
75.
With the aforementioned established, the Chamber went on to examine the issue of the
player’s alleged absences. In this regard, the DRC held that the club had not proven that
the player had been absent from the club prior to 15 March 2020 without any justification.
In particular, the club does not appear to have complained about such alleged absences at
the time these would have occurred. As to the player’s absence as of 15 March 2020, the
Chamber noted that the club did not seem to complain about such absence either, at least
not until it sent the player a default notice on 15 May 2020, this is, two months later.
Page 13 of 19
REF 20-00922
76.
Finally, the Chamber underlined that the proceedings held against the player in front of the
Disciplinary Commission were held in violation of the player’s rights, as it is obvious that the
player was not made aware of such proceedings prior to the hearing and that he could not
be heard.
77.
In conclusion, the DRC stated that the club could not justify the non-payment of the player’s
remuneration during the period March to June 2020.
78.
In view of all the above, and considering that i) the club had failed to pay the player’s
remuneration from January up until the termination of the contract on 19 June 2020
without any valid reason; and ii) on 1 June 2020 the player had duly put the club in default
of payment of the relevant salaries within the next fifteen days, to no avail, the Chamber
unanimously decided that the player had terminated the contract between the parties with
just cause. Consequently, the club is to held liable for breach of contract.
79.
Equally, the Chamber concurred that, in light of the aforementioned conclusion, the club’s
claim for compensation for breach of contract against the player is rejected.
80.
Prior to assessing the consequences of the early termination of the contract with just cause
by the Claimant, the DRC addressed the latter’s claim for outstanding remuneration. In this
regard, the Chamber held that the outstanding remuneration corresponds to any and all
amounts which the Claimant has not received and were due up until the date on which he
terminated the contract on 19 June 2020.
81.
In this regard, and as previously mentioned in the preceding paragraphs, it is established
that the club has failed to pay the player’s remuneration as from January until May 2020.
The month of June 2020 was not yet due at the time the player terminated the contract.
82.
Consequently and in accordance with the legal principle of pacta sunt servanda, the club
must pay the player the total amount of MAD 400,000, which corresponds to five monthly
salaries of MAD 80,000 each. Furthermore, the club must also pay the equivalent of five
monthly accommodation allowances as per contractual terms, which equals EUR 2,000.
83.
In accordance with the player’s claim as well as the Chamber’s constant practice in this
regard, 5% interest per annum on the aforementioned amounts as from the day following
the respective due dates until the date of effective payment.
84.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the player is entitled to receive from the Respondent compensation for breach
of contract in addition to any outstanding remuneration on the basis of the relevant
employment contract.
85.
In this context, the Chamber outlined that, in accordance with said provision, the amount
of compensation shall be calculated, in particular and unless otherwise provided for in the
Page 14 of 19
REF 20-00922
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 Claimant 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.
86.
In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a 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.
87.
The Chamber duly noted that art. 9 of the contract includes a compensation clause, which
stipulates as follows: "In the event of unilateral termination before term not motivated by
the serious breach of the other party or by a case of force majeure, and in this case only,
compensation, the amount of which is equivalent to the amount of remuneration
corresponding to the period from the date of termination to the term fixed by this contract
, will be due to the party who did not cause the unilateral termination."
88.
This being said, the Chamber could not find that the latter clause, which is drafted in rather
ambiguous terms, applies to the matter at stake. Indeed, such circumstance does not appear
to be covered by the relevant compensation clause. Therefore, the amount of compensation
due to the player must be established in accordance with the other parameters of art. 17
of the Regulations.
89.
Subsequently, the members of the Chamber took into account the remuneration due to
the player in accordance with the employment contract as well as the time remaining on
the same contract, along with the player’s professional situation after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of
the employment contract on 19 June 2020, the contract would run until 30 June 2020, this
is, for another month. Consequently, taking into account the financial terms of the contract,
the Chamber concluded that the remaining value of the contract as from its early
termination by the player until the regular expiry of the contract amounts to MAD 80,000.
Such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
90.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the player was not able to mitigate
his damages as he only found new employment after the contract with the club had expired.
91.
In view of the above, the Chamber decided to award the player MAD 80,000 as
compensation for breach of contract, which corresponds to the residual value of the
contract.
Page 15 of 19
REF 20-00922
92.
Furthermore, in accordance with the Claimant’s respective claim as well as the constant
practice of the Chamber, 5% interest per annum shall apply on the said amount as from
24 September 2020, date on which the player lodged his claim.
93.
94.
Finally, for the sake of good order, the DRC wished to emphasise that, according to its wellestablished, any amounts awarded to the player shall be awarded in the currency of the
contract.
ii. Compliance with monetary decisions
95.
Finally, taking into account the consideration under number 53. above, the Chamber
referred to par. 1 and 2 of art. 24bis 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.
96.
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 and for the maximum
duration of three entire and consecutive registration periods.
97.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
98.
The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3
of the Regulations.
99.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 16 of 19
REF 20-00922
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant 1 / Respondent 2, Ittihad Riadhi de Tanger, is rejected.
2.
The claim of the Claimant 2 / Respondent 1, Carlos Manuel dos Santos Fortes, is partially
accepted.
3.
The Claimant 1 / Respondent 2, Ittihad Riadhi de Tanger, has to pay to the Claimant 2 /
Respondent 1, Carlos Manuel dos Santos Fortes, the following amounts:
- Moroccan Dirhams (MAD) 400,000 as outstanding remuneration plus 5% interest p.a. as
follows:
o 5% interest p.a. on the amount of MAD 80,000 as from 1 February 2020 until
the date of effective payment,
o 5% interest p.a. on the amount of MAD 80,000 as from 1 March 2020 until
the date of effective payment,
o 5% interest p.a. on the amount of MAD 80,000 as from 1 April 2020 until the
date of effective payment,
o 5% interest p.a. on the amount of MAD 80,000 as from 1 May 2020 until the
date of effective payment,
o 5% interest p.a. on the amount of MAD 80,000 as from 1 June 2020 until the
date of effective payment,
- EUR 2,000 as outstanding rental allowance plus 5% interest p.a. as follows:
o 5% interest p.a. on the amount of EUR 400 as from 1 February 2020 until the
date of effective payment,
o 5% interest p.a. on the amount of EUR 400 as from 1 March 2020 until the
date of effective payment,
o 5% interest p.a. on the amount of EUR 400 as from 1 April 2020 until the date
of effective payment,
o 5% interest p.a. on the amount of EUR 400 as from 1 May 2020 until the date
of effective payment,
o 5% interest p.a. on the amount of EUR 400 as from 1 June 2020 until the date
of effective payment,
- MAD 80,000 as compensation for breach of contract plus 5% interest p.a. on the said
amount as from 24 September 2020 until the date of effective payment.
4.
Any further claims of the Claimant 2 / Respondent 1, Carlos Manuel dos Santos Fortes, are
rejected.
5.
The Claimant 2 / Respondent 1 is directed to immediately and directly inform the Claimant 1
/ Respondent 2 of the relevant bank account to which the Respondent must pay the due
amount.
Page 17 of 19
REF 20-00922
6.
The Claimant 1 / Respondent 2 shall provide evidence of payment of the due amount in
accordance with this decision to [email protected], duly translated, if applicable, into one of
the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amounts due, plus interest as established above, are not paid by the
Claimant 1 / Respondent 2 within 45 days as from the notification by the Claimant 2 /
Respondent 1 of the relevant bank details to the Claimant 1 / Respondent 2, the following
consequences shall arise:
1. The Claimant 1 / Respondent 2 shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid and for the maximum
duration of three entire and consecutive registration periods. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the due
amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 18 of 19
REF 20-00922
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 19 of 19