Dispute Resolution Chamber
Texto da decisão
REF 20-01196
Decision of the
Dispute Resolution Chamber
passed on 8 April 2021
regarding an employment-related dispute concerning the player Ivan MARKOVIC
COMPOSITION:
Geoff Thompson (England), Chairman
Tomislav Kasalo (Russia), member
Jérôme Perlemuter (France), member
CLAIMANT:
Ivan MARKOVIC, Serbia
Represented by Mr Zoran Rasić
RESPONDENT:
SC Chabab Mohammedia, Morocco
Represented by Mr Mohammed Moujtahid
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I.
FACTS OF THE CASE
1.
On 2 September 2019, the Serbian player, Ivan Marković (hereinafter: Claimant or player),
and the Moroccan club, SC Chabab Mohammedia (hereinafter: Respondent or club),
concluded an employment contract (hereinafter: contract) valid as from the date of
signature until 30 June 2022.
2.
According to clause 5.1 of the contract, the player was entitled to the following
remuneration:
Season 2019/2020, from 2 September 2019 until 30 June 2020:
yearly remuneration of MAD 385,000 net payable in ten equal instalments of MAD
38,500,
sign-on fee of MAD 693,000 payable in 3 instalments: MAD 231,000 upon
signature, MAD 231,000 on 31 January 2020 and MAD 231,000 on 30 April 2020.
Season 2020/2021, from 1 July 2020 until 30 June 2021:
yearly remuneration of MAD 462,000 net payable in twelve equal instalments of
MAD 38,500,
performance bonus on a yearly basis in the amount of MAD 693,000.
Season 2021/2022, from 1 July 2021 until 30 June 2022:
yearly remuneration of MAD 462,000 net payable in twelve equal instalments of
MAD 38,500,
performance bonus on a yearly basis in the amount of MAD 693,000.
Bonuses and other benefits, from 2 September 2019 until 30 June 2022:
bonus in the amount of MAD 97,000 for scoring 20 goals and the amount of MAD
10,000 for each further goal,
match bonus shall be paid according to the Bonus scale of the club, which is
calculated upon the participation and results in official matches (note: no amounts
specified in the contract),
MAD 4,000 per month for accommodation.
3.
Art. 16 of the employment contract provides the following:
« ARTICLE 16 : PROCEDURE DE REGLEMENT DES LITIGES En cas de contestation et/ou de
litige né de I ‘exécution et/ou de l’interprétation des clauses du présent contrat, les parties
sont tenues de recourir à tous les moyens et procédures en vue d'un règlement amiable du
litige. En cas d'échec, le différend est soumis, par I’une ou I’autre partie, à la chambre de
résolution des litiges de la Fédération Royale Marocaine de Football. Les décisions de la
chambre de résolutions des litiges de la FRMF sont susceptibles de recours conformément
aux dispositions des statuts et règlements de la FRMF ».
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Free translation into English: “PROCEDURE IN CASE OF DISPUTES In case of complaint and/or
dispute arising from the execution and/or the interpretation of the clauses in the present
contract, the parties are bound to seek by all means an amicable resolution. In case no
amicable resolution can be found, either of the parties shall submit the dispute to the
Dispute Resolution Chamber of the Fédération Royale Marocaine de Football. The decisions
of the Dispute Resolution Chamber of the FRMF may be appealed in accordance with the
provisions of the statutes and the regulations of the FRMF”.
4.
On 13 May 2020, the player reminded the club to pay the due sign-on fee in the amount
of MAD 693,000 within the next 15 days.
5.
On 21 May 2020, the player sent the same letter to the club, this time via DHL. The club
duly received the DHL on 26 May 2020.
6.
On 9 July 2020, the player terminated the contract invoking just cause with reference to
art. 14bis of the Regulations on the Status and Transfer of Players.
7.
On 16 July 2020, the player left Morocco.
8.
On 13 August 2020, the club responded by email and fax, complaining that it allegedly
took notice of the default notices only on 11 August 2020 since they were allegedly sent
to a wrong email address, which is not used frequently. The club requested the player to
come back to the club as soon as possible. Furthermore, the club alleged that the player
had received all his dues except for the first part of the sign-on fee, which will be paid
shortly.
9.
On 19 August 2020, the player replied to the club’s letter of 13 August 2020 and denied
that he must return to the club in light of the fact that he had already terminated the
contract. Furthermore, the player insisted on the fact that the club had failed to pay him
the entire sign-on fee, and therefore he had just cause to terminate the contract.
10.
Following the termination of the contract, the Claimant concluded an employment contract
with the Serbian club, FK Indjija, valid as from 1 September 2020 until 1 June 2021.
11.
According to the said employment contract and its annexe, the player was entitled to a
total salary of Serbian Dinars (RSD) 324,000 (MAD 29,307) under the contract and EUR
26,800 (MAD 287,000) under the annex.
12.
On 28 December 2020, the player and FK Indjija mutually agreed to terminate the contract.
According to the termination agreement, FK Indjijda should have paid the player an
outstanding debt of EUR 7,000.
13.
Subsequently, the player concluded a new employment contract with the Serbian club FK
Zlatibor, valid as from 11 January 2021 until 1 June 2021.
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14.
According to said contract and its annexe, the player was entitled to a total salary of RSD
150,000 (MAD 13,570) under the contract and RSD 600,000 (MAD 54,270) plus an
additional EUR 5,000 (MAD 53,545) as sign-on fee under the annexe.
II.
PROCEEDINGS BEFORE FIFA
15.
On 22 August 2020, the Claimant filed a claim for outstanding remuneration and
compensation for breach of contract against the Respondent before FIFA. A summary of
the parties’ positions is detailed below.
a.
The claim of the Claimant
16.
According to the Claimant, although he received all his monthly salaries and bonuses
between September 2019 and June 2020, the club did not pay him any instalment of the
sign-on fee in the total amount of MAD 693,000.
17.
After several verbal reminders, the player put the club in default in writing on 13 May 2020
and again on 21 May 2020.
18.
According to the player, although the 1st deadline of 15 days would expire on 28 May 2020,
the club was tacitly granted a new deadline when the player sent his default notice again
on 21 May 2020, and the deadline of 15 days would thus expire on 10 June 2020.
19.
In the meantime, the club’s Sport Director confirmed receipt of the default notice and asked
the player to be patient and that he would be paid at least the 1st share of the sign-on-fee
soon.
20.
Since the player did not receive any further amounts thereafter, he proceeded to terminate
the contract on 9 June 2020.
21.
In the next days, the Sport Director approached the player in order to seek a mutual
agreement and informed the player that, in any case, it did not make sense to keep him,
since he was not a regular player in the starting eleven.
22.
Between 27 July and 5 August 2020, the parties exchanged some messages to discuss about
the possibility of a settlement agreement.
23.
Since the player’s last offer remained unanswered, on 10 August 2020 the player’s counsel
sent a final message to the Sport Director to confirm that no agreement had been reached
since he did not reply to the player’s last offer.
24.
However, on 13 August 2020, the club finally responded to the default notices of May
2020, alleging that it took note of them only on 11 August 2020 and requesting the player
to return to the club.
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25.
Given the aforementioned circumstances, the player deems that he terminated the contract
with just cause in accordance with art. 14bis of the Regulations on the Status and Transfer
of Players, since the club failed to pay him the 3 instalments of the sign-on fee, which
represent 65% of the value of the first year of contract.
26.
The requests for relief of the Claimant were the following:
Outstanding:
MAD 693,000 representing the three instalments of the sign-on fee,
MAD 11,177 representing 9 days of July 2020
TOTAL: MAD 704,177 plus 5% interest as of the respective due dates
Compensation:
MAD 27,323 representing the remaining salary for July 2020,
MAD 423,500 representing 11 monthly salaries from August 2020 until June 2021
MAD 693,000 representing the bonus payment for the season 2020/2021
MAD 48,000 representing 12 monthly accommodation allowance for the season
2020/2021
MAD 462,000 representing 12 monthly salaries from July 2021 until June 2022
MAD 693,000 representing the bonus payment for the season 2021/2022
MAD 48,000 representing 12 monthly accommodation allowance for the season
2021/2022
TOTAL: MAD 2,394,823 plus 5% interest as of 10 July 2020
b.
Position of the Respondent
27.
In reply to the Claimant’s claim, the Respondent first challenged the competence of FIFA to
deal with the present dispute, referring to art. 16 of the contract, which gives competence
to the DRC of the Fédération Royale Marocaine de Football (hereinafter: NDRC).
28.
In this regard, the club provided a copy of the Regulations of the NDRC, edition 8 November
2019.
29.
The club referred, in particular, to art. 6, 8, 11 and 30 of the said regulations, and underlined
that the members of the NDRC are independent and impartial but can only recuse
themselves in case a party raises a doubt as to their independence or impartiality.
Furthermore, the club deems that the parties’ right of defence is fully respected. Finally, the
club held that parties may appeal a decision of the NDRC in front of the Court of Arbitration
for Sport.
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30.
As to the merits of the dispute, the Respondent emphasised that it had always honoured
most of its financial obligations towards the player, i.e. the payment of the player’s salary,
including during the Covid-19 pandemic.
31.
The club stressed that, in his claim, the player omitted the fact that he had signed an
amendment to the contract, according to which he had renounced to the last two
instalments of the sign-on fee. In support of this allegation, the club submitted a copy of
the alleged amendment no. 138, apparently signed by both parties and dated 27 January
2020, which inter alia mentions the following (free translation from French to English):
“Following the agreement of the parties and the agreement to loan the player to the
Kazakhstani club FK Kaspiy Aqtaw from 21 January 2020 until 1 December 2020, it has
been agreed as follows:
(…)
The player shall renounce to the remainder of his sign-on fee for the season 2019/2020 (i.e.
MAD 462,000)
(…)”
32.
As a consequence, at the time of the termination of the contract by the player, the only
outstanding amount was the first instalment of the sign-on fee in the amount of MAD
231,000.
33.
Furthermore, the club referred to its letter dated 12 August 2020 to the player, where it
underlined that the player was entitled to MAD 4,000 for accommodation, but the player
chose an accommodation that cost MAD 5,500. The club still covered the entire rental costs
of MAD 5,500 despite what was agreed in the contract. The club further emphasised that
the player had received all his salaries as well as match bonuses, and that the only
outstanding amount, i.e. the first instalment of the sign-on fee, would be paid shortly. In
such context, the club expressed its surprise that the player was absent from the club since
10 July 2020.
34.
In conclusion, the club deems that it owed, in fact, only MAD 214,500 (MAD 231,000 –
MAD 16,500 in connection with the rent) to the player at the time of termination.
35.
The club further emphasised that it had sent the player multiple letters on 20 July, 23 July
and 6 August 2020 in order to enquire about the justification for the player’s absence
without the club’s authorisation.
36.
Assuming the DRC would conclude that the player is entitled to compensation, the club
underlined, while referring to DRC jurisprudence (DRC decision dated 4 June 2020, ref. 1902003), that the yearly bonus (“prime de rendement”) shall not be taken into account in
the calculation of the residual value, as it constitutes a bonus which is strictly linked to
performance.
Therefore, the residual value of the contract would total only MAD 924,000, bearing in
mind that the accommodation allowance should also be excluded from the calculation.
37.
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38.
Finally, the club held that, in accordance with the player’s obligation to mitigate his
damages, the value of his new contract with the club FK Indjija should be deducted.
c.
Claimant’s comments with respect to Amendment no. 138
39.
Asked by the FIFA administration to comment on the conclusion of Amendment no. 138,
the player underlined that this document was signed by him in the context of a loan to a
Kazakh club, loan which ultimately did not happen. The player emphasised that he
remained with the Respondent throughout the duration and thus denied that Amendment
no. 138 is applicable.
40.
The Claimant therefore concluded that the Respondent still owes him the entire amount of
the sign-on fee.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
41.
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 22 August 2020 and submitted
for decision on 8 April 2021. Taking into account the wording of art. 21 of the 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.
42.
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 is in principle competent to hear employment-related disputes with an
international dimension such as the one at hand.
43.
This being said, the Respondent challenged the competence of FIFA to hear the present
matter, referring to the jurisdiction clause included in art. 16 of the contract (cf. par. 3
above) and arguing that the NDRC of the FRMF is exclusively competent to hear disputes
between the parties.
44.
The Claimant, for his part, maintained that the Chamber is competent in light of the
international dimension of the dispute, while alleging that the NDRC does not comply with
the minimum procedural standards laid down in art. 22. b) of the Regulations on the Status
and Transfer of Players and in accordance to FIFA Circular no. 1010 with respect to fair
proceedings.
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45.
At this point, the Chamber deemed it vital to outline the basic condition that needs to be
met in order to establish that another organ than the DRC is competent to settle an
employment-related dispute between a club and a player of an international dimension, is
that the jurisdiction of the relevant national arbitration tribunal or national court derives
from a clear and specific jurisdiction clause.
46.
In this respect, the Chamber recalled that Art. 16 of the employment agreement stipulated
that “PROCEDURE IN CASE OF DISPUTES In case of complaint and/or dispute arising from
the execution and/or the interpretation of the clauses in the present contract, the parties
are bound to seek by all means an amicable resolution. In case no amicable resolution can
be found, either of the parties shall submit the dispute to the Dispute Resolution Chamber
of the Fédération Royale Marocaine de Football. The decisions of the Dispute Resolution
Chamber of the FRMF may be appealed in accordance with the provisions of the statutes
and the regulations of the FRMF.”
47.
Having examined the relevant provision, the DRC pointed out that the clause in question,
i.e. Art. 14 of the employment contract, as agreed by the parties, makes an explicit and
unambiguous reference to competence and jurisdiction of the Moroccan NDRC for the
interpretation and the execution and the enforcement of the relevant contract.
48.
Nonetheless, the Chamber emphasised that in accordance with art. 22 lit. b) of the February
2021 edition of the Regulations on the Status and Transfer of Players, it is competent to
deal with a matter such as the one at hand, unless an independent arbitration tribunal,
guaranteeing fair proceedings and respecting the principle of equal representation of
players and clubs, has been established at national level within the framework of the
Association and/or a collective bargaining agreement.
49.
With regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to FIFA Circular no. 1010 dated 20
December 2005. Equally, the Chamber further referred to the principles contained in the
FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into
force on 1 January 2008.
50.
While analyzing the documentation submitted by the club in this respect, the Chamber took
particular note of the contents of Art. 5 of the Dispute Resolution Chamber Regulations of
the FRMF, edition 8 November 2019, which provides the following:
“the NDRC is composed of the following members: A Chairman, a Deputy Chairman and a
substitute Deputy Chairman nominated by the Board of Directors of the FRMF; one
representative of clubs playing in the Professional League, one representative of clubs
playing in the Amateur League, one representative of players (…)
The members attend the sessions of the NDRC whenever the dispute concerns the group
they represent (…)”
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51.
In this regard, the Chamber raised some doubts as to the independence of the Chairperson,
which, according to the aforementioned provision, is appointed by the Board of Directors
of the FRMF; however, no specification is mentioned as to whether there exists a consensus
from club and player representatives as to such appointment.
52.
Furthermore, art. 30 of the Dispute Resolution Chamber Regulations of the FRMF stipulates
that “The decisions of the NDRC may be appealed against in front of the Arbitral Chamber
for Sport (“Chambre Arbitrale du Sport”) once this Chamber will have been established”.
53.
In this regard, the appeal body indicated in this article does not appear to be the Court of
Arbitration for Sport, contrary to the Respondent’s allegation. Hence, it is not clear whether
the appeal body is established at national level or whether it has been established at all.
54.
As a consequence of the two points raised above, the Chamber unanimously concluded
that the club was unable to prove that, in fact, the Moroccan NDRC meets the minimum
procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of
the Regulations on the Status and Transfer of Players, in FIFA Circular no. 1010 as well as
in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations.
55.
To conclude, the Chamber established that Respondent’s objection to the competence of
FIFA to deal with the present matter has to be rejected and that the Dispute Resolution
Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and
Transfer of Players, to consider the present matter as to the substance.
56.
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 22 August 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
57.
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.
58.
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.
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c.
59.
Merits of the dispute
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.
i. Main legal discussion and considerations
60.
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 whether the player had just cause
to terminate the contract unilaterally on 10 July 2020. Indeed, while the player deems that
he had just cause to terminate the contract in light of the outstanding remuneration due to
him at the time, the club, for its part, disputes the amount of the outstanding remuneration
due to the player while highlighting that the player was absent without any valid reason as
of 10 July 2020.
61.
Looking into the Respondent’s arguments as to the existence of a just cause, the Chamber
first dealt with the issue of the outstanding remuneration due to the Claimant at the time
he terminated the contract.
62.
To summarise the Respondent’s position in this regard, the player would have allegedly
renounced to the second and third instalment of the sign-on fee with the conclusion of an
amendment dated 27 January 2020. Therefore, at the time of termination of the contract,
only the first instalment of the sign-on fee in the amount of MAD 231,000 was outstanding.
63.
The Chamber, having duly analysed the contents of the amendment in question, held that
it could not sustain the Respondent’s argumentation. While such document mentions that
the player would have relinquished his right receive the second and third instalments of the
sign-on fee, the circumstances under which such amendment was concluded remain
unclear. From the contents of such document, the DRC noted, however, that it would have
been concluded in the context of the player’s loan to the Kazakhstani club FK Kaspiy Aqtaw
from 21 January 2020 until 1 December 2020. Such loan does not appear to have actually
taken place; according to TMS, the player was never registered with the Kazakhstani club
and was transferred permanently from the Respondent to the Serbian club FK Indjija in
September 2020.
64.
In view of the above, the Chamber decided that it must disregard such document, which
was concluded in the context of the loan of the player that never materialised.
65.
As a consequence, the DRC concluded that, upon termination of the contract, the
Respondent had failed to pay the entire sign-on fee in the amount of MAD 693,000 to the
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Claimant. This amount represents more than one year of salary under the contract.
Furthermore, the Claimant had put the Respondent in default on two occasions, including
one time by means of a DHL, as is evidences by the proof of receipt by the club which the
player provided in support of his claim.
66.
Furthermore, the Chamber acknowledged that the club was de facto granted more than
15 days to remedy the default, to no avail.
67.
In continuation and with respect to the Respondent’s allegations that the Claimant was
absent and did not reply to its various default notices inviting him to come back to the club,
the Chamber deemed that, given the fact that the Claimant had proceeded to the
termination of the contract in writing on 10 July 2020, the club could no longer expect the
player to come back to the club. In other words, the player cannot be seen as having been
absent; he had, in fact, terminated the contract and had informed the club of such decision.
68.
In view of the above, the DRC decided that, given the circumstances described above, i.e.
the fact that the club had been in default of an amount well exceeding two months’ salary
and that the player had put the club in default of payment of the amount in question and
granted the latter more than 15 days to remedy the default, the player had just cause to
terminate the contract in accordance with art. 14bis of the Regulations.
69.
Consequently, the Respondent is to be held liable for the early termination of the
employment contact.
70.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract with just cause by the
Respondent.
71.
First of all, the members of the Chamber concurred that the Respondent must fulfil its
obligations as per employment contract up until the date of termination of the contract in
accordance with the general legal principle of pacta sunt servanda.
72.
On account of the above considerations and the documentation on file, the Chamber
decided that the Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination i.e. the amount of MAD 693,000 representing
the instalment of the sign-on fee. However, the DRC decided to deduct the amount of MAD
MAD 4,500 (3 x MAD 1,500) corresponding to the surplus which the club paid as
accommodation in excess of the contractual stipulations (MAD 5,500 per month instead of
MAD 4,000).
73.
In view of the above, the Respondent must pay outstanding remuneration to the Claimant
in the total amount of MAD 688,500.
74.
Furthermore, in light of the Claimant’s respective request as well as the constant practice
of the DRC, 5% interest per annum shall apply to the aforesaid amount as follows:
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o 5% interest on the amount of MAD 231,000 as from 3 September 2019
until the date of effective payment,
o 5% interest on the amount of MAD 231,000 as from 1 February 2020 until
the date of effective payment,
o 5% interest on the amount of MAD 226,500 as from as from 1 February
2020 until the date of effective payment.
75.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant 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.
76.
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
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.
77.
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.
78.
At this point in their deliberations, the members of the DRC took note of the Respondent’s
arguments, according to which the “prime de rendement” should not be taken into
consideration in the assessment of the quantum of the compensation due to the Claimant,
since the corresponding amounts were linked to performance throughout the season.
79.
In this regard, the Chamber did not agree with said argumentation given that the contract
did not contain any specification in that sense. Indeed, no particular condition is mentioned
for the payment of the “prime de rendement” in the contract, and therefore, such amount
must be considered as fixed remuneration.
80.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of
the employment contract on 10 July 2020, the contract would run until 30 June 2022, this
is, for another 24 months. Consequently, taking into account the financial terms of the
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contract, the Chamber concluded that the remaining value of the contract as from its early
termination by the Respondent until the regular expiry of the contract amounts to MAD
2,406,000. Such amount shall serve as the basis for the final determination of the amount
of compensation for breach of contract.
81.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant was able to mitigate
his damage by concluding a new employment contract with the Serbian club, FK Indjija,
from September 2020 until December 2020, and subsequently with another Serbian club,
FK Zlatibor, valid as from January until May 2021. Having converted the amounts due to
the Claimant under both contracts into Moroccan Dirhams, the Chamber came to the
conclusion that the player earned an amount of MAD 126,122 with FK Indjija and MAD
121,385 with FK Zlatibor, making a total of MAD 247,907.
82.
In accordance with the constant practice of the Dispute Resolution Chamber and the
general obligation of the Claimant to mitigate his damages, such remuneration under the
new employment contracts shall be taken into account in the calculation of the amount of
compensation for breach of contract.
83.
In view of the above, the mitigated compensation amounts to MAD 2,158,093.
84.
Furthermore, the DRC emphasised that, pursuant to art. 17 par. 1 lit ii. of the Regulations,
a player, in case of the early termination of the contract being due to overdue payables, in
addition to the mitigated compensation, shall also be entitled to an amount corresponding
to three monthly salaries (i.e. the additional compensation). What is more, in case of
egregious circumstances, the additional compensation may be increased to a maximum of
six monthly salaries. Finally, the overall compensation may never exceed the rest value of
the prematurely terminated contract.
85.
Bearing in mind the above, the DRC held that the Claimant would in principle be entitled,
on top of the mitigated compensation, to an additional compensation equivalent to 3
months of salaries, i.e. 3 x MAD 96,250 (average salary including the “prime de
rendement”), which equals MAD 288,750. This being said, the Chamber determined that
by adding the aforementioned amount to the mitigated compensation, such amount would
exceed the residual value of the contract. Therefore, the residual value shall be awarded as
compensation in accordance with art. 17 par. 1 lit ii. of the Regulations.
86.
Consequently, the Chamber decided that the Respondent must pay the amount of MAD
MAD 2,406,000 to the Claimant as compensation for breach of contract, which is
considered by the Chamber to be a reasonable and justified amount as compensation.
87.
Furthermore, 5% interest per annum shall apply on the amount of compensation, as from
8 August 2020, i.e. the date on which the claim was filed, until the date of effective
payment.
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ii. Compliance with monetary decisions
88.
Finally, taking into account the consideration under number 56. 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.
89.
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.
90.
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.
91.
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.
92.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Mr Ivan Marković, is admissible.
2.
The claim of the Claimant, Mr Ivan Marković, is partially accepted.
3.
The Respondent, Sporting Club Chabab Mohammedia, has to pay to the Claimant, Mr Ivan
Marković, the following amounts:
- Moroccan Dinars (MAD) 688,500 as outstanding remuneration plus 5% interest p.a. as
follows:
o 5% interest on the amount of MAD 231,000 as from 3 September 2019 until
the date of effective payment,
o 5% interest on the amount of MAD 231,000 as from 1 February 2020 until
the date of effective payment,
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o 5% interest on the amount of MAD 226,500 as from as from 1 February 2020
until the date of effective payment,
- MAD 2,406,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 22 August 2020 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the relevant
bank account to which the Respondent must pay the due amount.
6.
The Respondent 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 amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank
details to the Respondent, the following consequences shall arise:
1. The Respondent 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
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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
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