Labour Disputes
Texto da decisão
REF FPSD-4925
Decision of the
Dispute Resolution Chamber
passed on 7 July 2022
regarding an employment-related dispute concerning the player Saimon
Happygod Msuva
BY:
Frans de Weger (the Netherlands), Chairperson
Peter Lukasek (Slovakia), member
José Luis Andrade (Portugal), member
CLAIMANT/COUNTER-RESPONDENT:
Wydad Athletic Club, Morocco
Represented by Mr Ali Abbes and
Mr Mohamed Rokbani
RESPONDENT/COUNTER-CLAIMANT:
Saimon Happygod Msuva, Tanzania
Represented by Livida Sport Limited
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REF FPSD-4925
I. Facts of the case
1.
On 26 November 2020, the Moroccan Wydad Athletic Club (hereinafter: the club) and
the Tanzanian player, Mr Saimon Happygod Msuva (hereinafter: the player)
concluded an employment contract (hereinafter: the French contract), valid as from
the date of its signature until the end of the 2023/2024 season (according to the
information contained in the TMS, the said season in Morocco will presumably end
on 30 June 2024).
2.
In accordance with clause 5 of the French contract, the club undertook to pay to the
player, inter alia, the following remuneration:
For the season 2020/2021:
-
USD 220,000 as sign on fee, payable as follows: USD 100,000 at the beginning of
the season, USD 60,000 by 30 April 2021, USD 60,000 by the end of the season;
-
USD 2,500 as monthly salary.
For the season 2021/2022:
-
USD 264,000 as performance bonus, payable in 3 instalments: one at the
beginning of the season, another one by 30 April 2022, and another one by the
end of the season (no specification as to the amount of every instalment);
-
USD 3,000 as monthly salary.
For the season 2022/2023:
-
USD 264,000 as performance bonus, payable in 3 instalments: one at the
beginning of the season, another one by 30 April 2023, and another one by the
end of the season (no specification as to the amount of every instalment);
-
USD 3,000 as monthly salary.
For the season 2023/2024:
- USD 264,000 as performance bonus, payable in 3 instalments: one at the
beginning of the season, another one by 30 April 2024, and another one by the
end of the season (no specification as to the amount of every instalment);
-
USD 3,000 as monthly salary.
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REF FPSD-4925
3.
According to the said clause, the club would pay the player’s remuneration in MAD, in
an amount equivalent to the amount expressed under clause 5 of the contract in USD.
4.
Also as per the said clause, the club undertook to pay to the player match bonuses
depending of the player’s participation and the results obtained, in accordance with
the scale established by the club for the relevant sporting season.
5.
On 27 October 2021, the player put the club in default in the amount of USD 144,000,
thereby granting the club a 15 days’ deadline.
6.
By means of his letter dated 8 December 2021, the player put the club in default of
payment, again, this time in the amount of USD 276,000, corresponding to the
residual value of the sign-on fee due for the season 2020/2021 in the amount of USD
144,000 and USD 132,000 corresponding to the unpaid part of the sign-on fee /
performance bonus due for the season 2021/2022, thereby granting the club a 10
days’ deadline to remedy the default.
7.
By means of its letter dated 16 December 2021, the club replied thereto, stating that
clause 5 of the contract does not refer to sign-on fees but to performance fees and
that, in that context, the player had received all his financial dues.
8.
On 20 December 2021, the player replied to the club, stating that although the player
acknowledged receipt of his salaries, the latter has always stressed that the club failed
to pay the player’s sign-on fees in the amount indicated in his previous notice and that
the wording of clause 5 of the contract is clear when referring to sign-on fee
payments, which are not performance bonus, as suggested by the club. In this
context, the player granted the club a deadline until 22 December 2021 to remedy the
default.
9.
By means of its letter dated 23 December 2021, the player unilaterally terminated the
contractual relationship and urged the club to pay him the amount of USD 1,035,102,
corresponding to the outstanding moneys allegedly due to the player, informing the
club that the said letter had also been forwarded to FIFA.
10. Thereto, the club replied on 27 December 2021, stating that the player’s claims are
“extra contractual” and that all amounts due to the latter had been paid. In addition,
the club urged the player to resume his training and render his professional services
for the club.
11. Following the termination of the contract, the Claimant remained unemployed.
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REF FPSD-4925
II. Proceedings before FIFA
a. Position of the Claimant / Counter-Respondent
12. On 24 January 2022, the club lodged a claim against the player before FIFA, requesting
to be awarded compensation for breach of contract in the total amount of USD
413,034, plus 5% interest p.a., broken down by the club as follows:
-
USD 90,775, corresponding to the residual value of the French contract (salaries),
calculated by the club itself as from 24 December 2021 until June 2024;
-
USD 322,259, as loss of income, corresponding to the value of the player in the
market, which the club is basing on the transfer compensation paid by the club to
the player’s former club for the acquisition of the player’s economic rights, i.e. MAD
3,000,000, which the club is converting into USD 322,259.
13. Subsidiary to the above, for the case the player signed a new contract with a third
club, the club requested the compensation for breach of contract be calculated by
calculating the average between the value of the player’s new contract and the
residual value of the French contract during the overlapping period.
14. In its claim, the club held that the player received all his salaries and match bonuses,
which is not disputed by the player.
15. As for the sign-on fee of the season 2020/2021, the club argued having paid MAD
2,096,550 (approx. USD 225,955) for this consideration, i.e. in an amount higher than
the one due to the player for this concept. In this context, the club provided
documents allegedly signed by the player, whereby the latter acknowledges having
receipt the following amounts as part of his sign-on fee for the season 2020/2021, i.e.
a total of MAD 1,368,550:
-
MAD 968,550 on 5 February 2021;
MAD 484,275 on 25 February 2021;
MAD 200,000 on 28 April 2021;
MAD 484,275 on 12 May 2021;
MAD 200,000 on 26 July 2021;
MAD 200,000 on 20 August 2021;
MAD 284,000 on 15 September 2021;
MAD 112,000 on 3 October 2021;
MAD 200,000 on 20 October 2021.
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REF FPSD-4925
16. In connection with the amount requested by the player in his default notices as signon fee for the season 2021/2022, the club referred to the wording of clause 5 of the
French contract and stressed that the parties did not agree on the club paying signon fees for the said season, nor for the following seasons, but performance bonuses,
which payment -in any case- are of a potestative nature. In this respect, the club
argued that the player could not validly claim that the performance bonus for the
season 2021/2022 were due in December 2021, at a time where the player had only
played 12 matches, insofar as, a matter of practice, performance bonuses are payable
at the end of the relevant sporting season.
17. In view of the above, insofar as the club had duly complied with its payment
obligations when the player unilaterally terminated the contractual relationship, the
club held that the player terminated it without just cause on 23 December 2021, which
entitles the club to request to be awarded a compensation for breach of contract from
the player.
b. Position of the Respondent / Counter-Claimant
18. On 27 January 2022, the player lodged a claim against the club (which has been
treated as a simultaneous claim together with the one lodged by the club in view of
the common timeframe in which both claims were lodged), requesting to be awarded
outstanding remuneration and compensation for breach of contract in the total
amount of USD 1,032,000, plus 5% interest p.a., broken down by the player as follows:
Outstanding remuneration: USD 266,000
-
USD 134,000 corresponding to the unpaid part of the sign-on fee payable for the
season 2020/2021;
-
USD 132,000 corresponding to the alleged sign-on fee payable for the season
2021/2022*.
Compensation for breach of contract: USD 756,000
-
USD 24,000 corresponding to the residual salaries of the season 2020/2021, as
from December 2021 until July 2022 in the amount of USD 3,000 each;
-
USD 132,000 as performance bonus for the season 2021/2021*;
-
USD 300,000 corresponding to the value of the contract for the season
2022/2023;
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REF FPSD-4925
-
USD 300,000 corresponding to the value of the contract for the season
2023/2024.
19. Along with his claim, the player provided a document as Annexe 1 (hereinafter: the
English contract), signed by the player only, displaying the alleged financial
entitlements of the player during the term of the contract. In particular, the said
document states, inter alia, that the club undertakes to pay to the player the following
remuneration:
For the season 2020/2021: USD 250,000
-
USD 230,000 as sign on fee, payable as follows: USD 110,000 at the beginning of
the season, USD 60,000 by 30 April 2021, USD 60,000 by 31 July 2021;
-
USD 2,500 as monthly salary.
For the season 2021/2022: USD 300,000
-
USD 132,000 as sign-on fee by 30 November 2021;
-
USD 132,000 as performance bonus should the player participate in at least 50%
of the official matches for one minute or more (payable within the 30 days that
follow the last game of the season);
-
USD 3,000 as monthly salary.
For the season 2022/2023: USD 300,000
-
USD 132,000 as sign-on fee by 30 November 2022;
-
USD 132,000 as performance bonus should the player participate in at least 50%
of the official matches for one minute or more (payable within the 30 days that
follow the last game of the season);
-
USD 3,000 as monthly salary.
For the season 2023/2024: USD 300,000
-
USD 132,000 as sign-on fee by 30 November 2023;
-
USD 132,000 as performance bonus should the player participate in at least 50%
of the official matches for one minute or more (payable within the 30 days that
follow the last game of the season);
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REF FPSD-4925
-
USD 3,000 as monthly salary.
20. In his claim, the player held that “whilst monthly salary payments have been met,
payment of the signing fees in full for seasons 2020/21 and 2021/22 have not”. In this
respect, the player explained in detail how the club proceeded with partial payments
of the sign-on fees for the seasons 2020/2021 and 2021/2022:
Season 2020/2021: USD 86,000 paid; USD 144,000 outstanding
-
USD 54,000 upon signing of the contract “in or around November 2020”;
USD 22,000 by cheque in July 2021;
USD 10,000 in cash “in or around October 2021”
“The Club purported to pay two further sums of USD 22,000 by cheques dated 20
August 2021 and 20 October 2021, but both of these cheques bounced and the
sums did not clear”.
Season 2021/2022: USD 132,000 outstanding (instalment payable by November 2021)
-
None.
21. In his claim, the player argued that, despite being contractually entitled to receive the
above-mentioned sign-on fees and having put the club in default of payment on
several occasions, the club failed to remedy the default.
22. In connection with the statements of the club that the amounts claimed by the player
correspond to performance bonuses and not to amounts due as sign-on fees, the
player made the following considerations: “the Club has disputed that the signing fees
are salary payments – asserting instead that they are performance-based bonuses.
The Employment Contract is unequivocal that the signing fees form part of the
Player’s remuneration package and are not conditional upon any action taken by the
Player (unlike the performance bonuses – which are distinguished as such in the
Employment Contract). In any event, even if the signing fees were not regarded as
salary per se (which for the avoidance of doubt, is not the case), page 23 of the
Commentary stipulates as follows: “Article 14bis refers to unpaid and outstanding
salaries. However, this certainly does not imply that delayed payment of other forms
of (frequent, non-conditional) remuneration cannot constitute a just cause for a
player to terminate their contract prematurely. A player invoking other outstanding
remuneration as just cause to terminate their contract may still have a strong case…
Particular attention should be paid [to] factors such as whether the outstanding
amount is significant (i.e. that it is neither negligible nor totally subordinated), the
extent of the delay, the general attitude of the parties in the specific case, and other
relevant factors”.
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REF FPSD-4925
23. Thus, while referring to his default notices and in view of the amount that was
outstanding at the time when the player terminated the contractual relationship, to
which the player referred as a “significant amount”, the player argued having
terminated it with just cause on 23 December 2021 ex. art. 14bis of the RSTP.
c. Rejoinder from the Claimant / Counter-Respondent
24. In its reply to the claim, the club reiterated its previous arguments, requested the
allegations of the player be rejected and further stated that it is clear that the player
did not terminate his contract with just cause and that he behaved in “bad faith” by
ignoring the full payment of the sign-on fee for the 2020/2021 sports season and also
the payment of a part of the performance bonus for the 2021/2022 season.
25. In addition, while referring to the contract provided by the club, it wished to stress
that clause 5 of the contract specifies that whereas the consideration of the lump sum
payable for the season 2020/2021 was a sign-on fee, the consideration of the lump
sums payable for the following seasons was performance bonus.
26. The club further referred to the payment receipt signed by the player on 28 April 2021,
whereby the player specifically acknowledged having received all his remuneration
for the season 2020/2021, and held that, thereby, the player acknowledged the
compliance of the club with all its monetary obligations for the said season, including
the sign-on fee.
27. In connection with the performance bonus of the season 2021/2022, the club held
that it made a payment of MAD 112,00 to the player on 3 October 2021 and that it
was foreseen that the club would pay the player a second payment of the
performance bonus in April 2022 and a final amount as closing balance at the end of
the 2021/2022 season, after deduction of the amounts paid in advance.
28. In view of the above, the club held that it is clear that, by the day of termination, no
amount was outstanding and, therefore, the termination was made without just
cause.
d. Rejoinder from the Respondent / Counter-Claimant
29. In its reply to the claim, the player firstly stressed that the valid employment contract
was the one provided by the player, i.e. the English contract (the English contract does
not contain the signature of the club), which was allegedly signed prior to the French
contract provided by the club.
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REF FPSD-4925
30. As for the validity of the French contract, the player held that it was written in French,
a language that the player does not command and, upon the player’s request as to
what the said contract stated, he was informed by the club that it was the French
version of the contract he had already signed, i.e. the English Contract.
31. In this context, the player held the following: “the only contract the Player has had in
his possession until now, and which he maintains reflects the terms agreed between
the parties is the English Contract. In any event, irrespective of which Contract is held
to be valid / applicable, for the reasons set out below, the Player’s claim succeeds
under both contracts”.
32. The above being said, the player maintained that the parties do not agree in respect
of payment of the sign-on fees. In this respect, the player observed that the “club
maintains that it paid the Player in excess of the USD 220,000 Signing Bonus for the
2020/2021 season, whereas the Player contends (and can demonstrate) that he has
only been paid USD 86,000”.
33. In this context, the player provided detailed explanations as to every payment
allegedly made by the club:
-
Bank check corresponding to the 1st instalment of the sign-on fee of USD 100,000,
payable at the beginning of the season: the player acknowledges having signed the
bottom of the document acknowledging that he had received two Bills of Exchange
for a total of MAD 968,550 (the ones dated 25 February and 12 May 2021), but
stresses that the money of the second Bill of Exchange did not arrive into his bank
account, probably because the club did not have enough funds. The player further
stressed that he does not speak, read or write French and when he was handed
the letter to sign (as was the case with all subsequent letters of a similar nature), a
translation was not provided to him, and he simply signed in good faith, trusting
the club’s word as to what the letter said. Thus, argued the player, the amount of
EUR 50,000 remains unpaid.
-
Cash payment of USD 3,000 received on 13 January 2021: the player held that the
club gave him this money as “relocation costs”.
-
Bank check corresponding to the 2nd instalment of the sign-on fee of USD 60,000,
payable by 30 April 2021: the player argues that he tried to cash the Bills of
Exchange (the ones dated 20 August and 20 October 2021) immediately upon
having received them from the club, however, none of them could be cashed, since
the club’s bank account did not have enough funds. Thus, the amount of USD
60,000 remains outstanding.
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REF FPSD-4925
-
Cash payment of MAD 200,000 received on 26 July 2021: The player argues that he
never received any such payment in cash but via transfer wire.
-
Bank check in the amount of MAD 284,000 paid on 15 September 2021: the player
held that that this bank check was never handed to him, which is proven by the fact
that it is not signed by the player and no “discharge” document is provided by the
club along with it, unlike with the other bank checks provided by the club.
-
Cash payments of MAD 212,000 allegedly made in October 2021: The player
confirms having received MAD 112,000 as “avance de ma prime de signature Saison
sportive 2021/2022” but denies having received MAD 100,000.
34. In view of the above, the player argued that, out of the amount of USD 220,000, due
to him as sign-on fee for the season 2020/2021, the club only paid USD 86,000 and,
thus, the club is still in default of payment of the amount of USD 134,000.
35. In connection with the sign-on fee payable for the season 2021/2021, i.e. USD 132,000,
the player held that the club never paid it, despite it clearly being a fixed amount, as
displayed in the English contract, and not a performance bonus. In this respect, the
player argued that “there is nothing performance related about the ‘Performance
Bonus’ which was triggered exclusively by the arrival of the instalment payment dates.
Whilst labelled a ‘Performance Bonus’ the payment to the Player of $264,000 in three
equal instalments – was clearly a Signing Bonus”.
36. In addition to the above, the player maintained the following: “The so-called
‘Performance Bonus’ did not require any performance by the Player whatsoever, all it
required was for the Player to be at the Club when the payments fell due. The Player
was indeed at the Club when the first instalment of the ‘Performance Bonus’ fell due
at the beginning of the 2021/2022 season. It is misleading of the Club to suggest that
as the Player had only played in 12 matches as at December 2021, his entitlement to
the full bonus was not yet ascertainable and could only be calculated at the end of
the season. As indicated above, in contrast to a ‘Match Bonus’, there is no suggestion
whatsoever in the French Contract, that the Player had to have played in any specific
number of matches (or fulfilled any other obligation) to trigger the ‘Performance
Bonus’. Payment of the ‘Performance Bonus’ was triggered by nothing other than the
arrival of the applicable payment dates”.
37. In his request for relief, the player reiterated his previous requests, highlighting that,
should the DRC consider that the French contract prevails, the amounts to be
awarded to the player would be the following: USD 222,000 as outstanding
remuneration, corresponding to the unpaid part of the sign-on fee for the season
2020/2021 and USD 800,000 as compensation for breach of contract, corresponding
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REF FPSD-4925
to the residual value of the contract (bonuses included), plus 5% interest p.a. as from
the respective due dates.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
38. 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 24 January
2022 and submitted for decision on 7 July 2022. Taking into account the wording of
art. 34 of the June 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.
39. 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 (July 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 a
Moroccan player and a Tanzanian club.
40. 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 (July 2022
edition), and considering that the present claim was lodged on 24 January 2022, the
August 2021 edition of said regulations (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
b. Burden of proof
41. 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).
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REF FPSD-4925
c. Merits of the dispute
42. 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.
i. Main legal discussion and considerations
43. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties lodged simultaneous claims against
each other. On the one hand, the club requested to be awarded compensation for
breach of contract on the grounds that the termination made by the player on 23
December 2021 was made without just cause. On the other hand, the player
requested to be awarded outstanding remuneration and compensation for breach of
contract, arguing having terminated the contractual relationship with just cause on
23 December 2021.
44. The above being said, the DRC stressed that one of the key issues of the present
dispute lies on the fact that the parties provided 2 different contracts, referred to as
the French contract, provided by the club, and the English contract, provided by the
player. Whereas the remuneration contained in both contracts does not differ, the
wording of the specific considerations does differ: the French contract only provides
for the entitlement of the player to receive performance bonuses, whereas the
English contract distinguishes between sign-on fees / fixed lump sums and
performance bonuses.
45. The above is relevant insofar as both parties acknowledge that the club duly complied
with the payment of the salaries due to the player and the termination made by the
player is only based on the outstanding bonuses.
46. Thus, it must be determined which contract is valid and whether the said bonuses
had the nature of performance bonuses (conditional payments) or sign-on fees / lump
sums payable at the beginning of the relevant season (fixed payment).
Is the French contract valid? And the English contract? Do the bonuses requested by the
player hold the nature of sing-on bonus or of performance bonus?
47. In this respect, it needs to be noted that, whereas the French contract is duly signed
by both parties, the English contract is only signed by the player.
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REF FPSD-4925
48. In this regard, the player argues that he signed the French contract without having a
sufficient command of French and, subsequently, he was told that the conditions
therein contained were equal to the ones included in the English contract, of which
no signed copy was provided to the player.
49. In this respect, the DRC wished to state that, as a general duty of care, contracting
parties must be aware of the content of a document before signing it, insofar as a
signature / stamp will logically lead to the assumption that the relevant party agreed
with its content and will be bound by it. The lack of diligence shown by signing an
agreement without knowing the language in which it is written cannot be used as an
excuse to escape its binding nature, since the negligent party should have been aware
of its content before signing it. Thus, the DRC determined that the French contract
must be considered as validly entered into between the parties.
50. As for the English contract, insofar as it lacks the signature of the club and no other
means of consent seem to have been granted by the club for it to be conceived as
validly concluded, the Chamber decided that it cannot deploy any effects, since the
consent is one of the essential elements of a contract, without which it lacks binding
nature. In spite of the above, not only the contract shall be observed in order to
determine which specific obligations were undertaken by the parties within the
contractual relationship. The main issue of the present analysis, rather than being a
linguistic interpretation, insofar as the French contract is clear when stating that the
bonuses due are performance bonuses “prime de rendement”, is whether the actual
intention of the parties was to reward the player on the basis of his performance or
in a fixed manner.
51. In this respect, despite the wording of clause 5 of the French contract, the DRC
concluded that the bonuses named as “prime de rendement” shall be considered as
fixed bonuses, on the following two grounds:
52. Firstly, in accordance with the jurisprudence of the DRC, whenever a contract foresees
the entitlement of a player to receive a performance bonus, the specific goals that
need to be achieved in order for the payment of the relevant performance bonus to
be triggered shall be indicated, either in the contract or in another document that is
available to the player (e.g. the club’s regulations). Should the relevant information as
to the achievements triggering the entitlement of the player to receive the bonus not
be indicated or available to the player, the club would be enjoying a position where it
could -in a potestative manner- decide or not to grant the bonuses to the player,
which goes in detriment of the legal principle of legal certainty. What is more,
whenever the said clauses specify the amount due to the player as bonus without
indicating the goals to be achieved, a presumption is created on the player that the
said bonuses will be paid on a non-conditional basis.
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REF FPSD-4925
53. Secondly, the behaviours of the parties also need to be considered. In this respect,
whereas the club argues that, for the season 2021/2022, the bonuses payable as per
clause 5 of the French contract were performance bonuses, the very club issued a
document, on 3 October 2021 accepting to pay to the player the amount of MAD
112,000 as “prime de signature Saison Sportive 2021/2022”, which is translated as
sign-on fee for the sporting season 2021/2022. It is important to note that the said
document was provided by the club itself and, thus, an implicit acknowledgement of
its veracity needs to be conferred to it.
54. In view of the above, despite the English contract not binding the club, it is our opinion
that the argumentation of the player concerning the mutual agreement of the parties
as to the fixed nature of the bonuses needs to be accepted and, consequently, the
bonuses contemplated under clause 5 of the French contract shall be considered as
sign-on fees.
Did the player terminate the contract with just cause on 23 December 2021?
55. In order to determine whether the player terminated the contractual relationship with
or without just cause, the DRC concluded that, firstly, it need to be determined, inter
alia, the amounts that were outstanding by the date on which the contract was
terminated. In order to do so, the documentary evidence provided by the parties
needs to be analysed.
56. After an analysis thereof, the Chamber devided the payment proof provided by the
club in 2 different categories:
A. Documents signed by the player acknowledging receipt of the amount therein
indicated:
-
Document of 13.01.20 – Amount paid: EUR 3,000 – Consideration: sign-on fee
20/21;
Document of 05.02.21 – Amount paid: MAD 968,550 – Consideration: sign-on
fee 20/21;
Document of 28.04.21* – Amount paid: MAD 200,000 – Consideration: signon fee 20/21;
Document of 26.07.21 – Amount paid: MAD 200,000 – Consideration: sign-on
fee 21/22
*In connection with the payment document of 28 April 2021, it must be noted that
the player, thereby, acknowledge having receive al his financial entitlements for the
season 2020/2021.
TOTAL A: MAD 1,368,550 and EUR 3,000
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REF FPSD-4925
B. Bank checks issued by the club in favour of the player (signed by the player):
-
Bank check of 25.02.21 – Amount: MAD 484,275 – Consideration: sign-on fee
20/21;
Bank check of 12.05.21 – Amount: MAD 484,275 – Consideration: sign on fee
20/21;
Bank check of 20.08.21 – Amount: MAD 200,000 – Consideration: sign on fee
20/21;
Bank check of 15.09.21 – Amount: MAD 284,000 – Consideration: sign-on fee
20/21
Bank check of 20.10.21 – Amount: MAD 200,000 – Consideration: sign-on fee
20/21;
TOTAL B: MAD 1,652,550
57. In view of the above, several considerations need to be made. First of all, as for the
document dated 28 April 2021, whereby the player acknowledged having receipt all
his financial entitlements for the season 2020/2021, the DRC determined that the said
document cannot serve as valid discharge of the club’s financial obligations insofar
as, at a later stage, the club continued to issue bank checks in favour of the player,
which consideration was the payment of the sign-on fee of the season 2020/2021 (see
bank checks of 12 May, 20 August, 12 September and 20 October 2021). Thus, the said
comment cannot produce the effects sought by the club.
58. In connection with the 2 different types of documentary evidence provided by the
club to discharge its financial liabilities pertaining to the payment of the sign-on fee
of the season 2020/2021, the jurisprudence of the DRC needs to be recalled.
59. In accordance with the jurisprudence of the Chamber, whereas documents signed by
a party acknowledging receipt of a certain payment can discharge the debtor form its
liabilities vis a vis the creditor, bank checks provided without any further evidence
confirming the performance of the transaction cannot discharge the debtor from its
liabilities, insofar as a bank check can be issued by the debtor, received by the creditor
(which can even stamp its signature on it, thereby showing that it duly received it) and
-later on- not be successfully cashed by the creditor if, for instance, the debtor’s bank
account did not have enough funds. Thus, in accordance with the jurisprudence of
the DRC, should a debtor aim at discharging its financial liabilities against
presentation of a bank check, further evidence of the relevant monetary transaction
shall be provided. In the present case, insofar as such further evidence was not
provided, the Chamber concluded that the bank checks cannot prove that the
payment was actually made, unless the player confirmed its receipt.
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REF FPSD-4925
60. In this context, it must be noted that the player acknowledged receipt of the following
bank checks:
-
Bank check of 25.02.21 – Amount: MAD 484,275 – Consideration: sign-on fee
20/21
Bank check of 20.10.21 – Albeit only in the amount of: MAD 112,000 –
Consideration: sign-on fee 20/21
TOTAL B (as confirmed by the player): MAD 596,275
61. In view of the above, the DRC determined that the amount which payment has been
proven by the club (TOTAL A: MAD 1,368,550 and EUR 3,000) and the amount which
payment has been acknowledged by the player (TOTAL B: as confirmed by the player:
MAD 596,275) shall be regarded as the amounts that the club effectively paid to the
player as sign-on fee for the season 2020/2021, i.e a final total of MAD 1,964,825 and
EUR 3,000, which equals USD 200,800.
62. Thus, the DRC concluded that, by the date of termination of the contract, the club was
in default of payment of USD 19,200 (USD 220,000 – 200,800) concerning the amounts
due as sign-on fee for the season 2020/2021.
63. In connection with the amounts due as sign-on fee for the season 2021/2022, several
considerations need to be made:
-
The sign-on fee for the season 2021/2022, as per the French contract,
amounts to USD 264,000;
By the date of termination of the contract, only the first instalment thereof
was due;
In the absence of specificity of the instalments in which the sign-on fee was
payable, it is our opinion that it shall be equally divided into the 3 instalments
in which it was payable, as per clause 5 of the French contract, i.e. USD 88,000
(the first instalment) was due at the beginning of the relevant season, i.e. on
10 September.
64. From the above, it can be interpreted that, by the date of termination, the club was in
default of payment of USD 88,000 as sign-on fee for the season 2021/2022.
65. The above being said, it must be noted that the amounts that were outstanding do
not have the consideration of salary but of sign-on fee. The aforementioned is only
relevant for the application of art. 14bis of the RSTP, which application is reserved for
scenarios where salaries are not paid.
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REF FPSD-4925
66. However, continued the DRC, the player has been able to demonstrate that the club
recurrently failed to pay the instalments of the sig-on-fees for the seasons 2020/2021
and 2021/2022 on their due dates, the club failing to pay an amount of USD 19,200,
which should have been paid by the end of the 2020/2021 season, as well as an
amount of USD 88,000, payable by the beginning of the season 2021/2022.
67. Consequently, the DRC concluded that, after having put the club in default of payment
on 3 occasions (27 October, 8 December and 20 December 2021), without the club
remedying its default, the player did terminate the contract with just cause on 23
December 2021 cf. art. 14 of the Regulations, insofar as -at that moment in time- the
player could no longer reasonably rely on the club complying with its financial
obligations towards him.
ii. Consequences
68. 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.
69. The Chamber observed the outstanding remuneration due to the player at the time
of termination of the contract and concluded that, in accordance with the legal
principle pacta sunt servanda, the player is entitled to receive outstanding
remuneration in the total amount of USD 107,200 (19,200 + 88,000), payable in MAD
cf. clause 5 of the French contract, plus 5% interest p.a. -in accordance with the
Claimant’s request as well as the constant practice of the Chamber in this regard-,
calculated as follows:
-
On the amount of USD 19,200, as from 1 September 2021 until the date of
effective payment (according to TMS, the 2020/2021 season in Morocco ended
on 30 August 2021);
-
On the amount of USD 88,000, as from 11 September 2021 until the date of
effective payment (according to the information at our disposal, the 2021/2022
season in Morocco started on 10 September 2021).
70. 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
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REF FPSD-4925
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.
71. 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.
72. 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.
73. 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 USD 800,000 (i.e. USD
24,000 corresponding to the residual salaries of the season 2020/2021, as from
December 2021 until July 2022 in the amount of USD 3,000 each; USD 176,000 as
bonus for the season 2021/2022; USD 300,000 corresponding to the value of the
contract for the season 2022/2023; USD 300,000 corresponding to the value of the
contract for the season 2023/2024) serves as the basis for the determination of the
amount of compensation for breach of contract.
74. 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.
75. In this respect, the DRC verified that the player did not find any new employment with
any third club following the termination of the contract at stake. Therefore, the
Chamber concluded that the player could not mitigate his damages.
76. 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 USD 800,000 to the player (i.e. the residual value of the contract), which
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REF FPSD-4925
was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
77. 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 27 January 2022 (i.e. as from the date on
which the player lodged his claim against the club – in accordance with the usual
practice of the DRC) until the date of effective payment.
iii. Compliance with monetary decisions
78. 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.
79. 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.
80. 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.
81. 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.
82. 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.
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REF FPSD-4925
d. Costs
83. 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.
84. 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.
85. 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-4925
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Wydad Athletic Club, is rejected.
2.
The claim of the Respondent / Counter-Claimant, Saimon Happygod Msuva, is partially
accepted.
3.
The Claimant / Counter-Respondent has to pay to the Respondent/Counter-Claimant
the following amount(s):
- USD 107,200 as outstanding remuneration plus 5% interest p.a., calculated as
follows:
On the amount of USD 19,200, as from 1 September 2021 until the date of
effective payment;
On the amount of USD 88,000, as from 11 September 2021 until the date of
effective payment.
-
USD 800,000 as compensation for breach of contract, plus 5% interest p.a. as from
27 January 2022 until the date of effective payment.
4.
Any further claims of the Respondent / Counter-Claimant are 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 Claimant / Counter-Respondent shall be banned from registering any new
players, either nationally or internationally, up until the due amount is paid. The
maximum duration the ban shall be of three entire and consecutive registration
periods.
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REF FPSD-4925
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 Respondent /
Counter-Claimant in accordance with article 24 par. 7 and 8 and art. 25 of the
Regulations on the Status and Transfer of Players.
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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).
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
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