Labour Disputes
Texto da decisão
REF. FPSD-12403
Decision of the
Dispute Resolution Chamber
passed on 10 May 2024
regarding an employment-related dispute concerning
the player Axel Meye Me Ndong
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Angela Collins (Australia), Member
Laurel Vaurasi (Fiji), Member
CLAIMANT:
Player Axel Meye Me Ndong, Gabon
Represented by Olivier Ducrey
RESPONDENT:
Raja Casablanca, Morocco
Represented by Sport Makers Nasr Eldin Azzam & Partners
pg. 2
REF. FPSD-12403
I. Facts of the case
1.
On 28 August 2022, the Gabonese player, Axel Meye Me Ndong (hereinafter: the player or
the Claimant) and the Moroccan club, Raja Casablanca (hereinafter: the club or the
Respondent), concluded an employment contract (hereinafter: the contract), valid as from
the date of its signature and until 30 June 2025.
2.
In accordance with clause 5 of the contract, the player was entitled to – inter alia – a
monthly salary of MAD 30,0000, as well as to a sign-on fee of MAD 9,000,000, which would
be payable in 9 different instalments throughout the duration of the contract, as follows:
-
MAD 500,000 on 28 August 2022;
MAD 750,000 by 31 March 2023;
MAD 750,000 by 30 June 2023;
MAD 1,000,000 by 31 October 2023;
MAD 1,000,000 by 31 March 2023;
MAD 1,000,000 by 30 June 2024;
MAD 1,300,000 by 31 October 2024;
MAD 1,300,000 by 31 March 2025;
MAD 1,400,000 by 30 June 2025.
3.
Also as per clause 5 of the contract, the player was entitled to be provided with
accommodation.
4.
On 26 June 2023, the parties concluded a settlement agreement, whereby the club
undertook to pay to the player the amount of MAD 750,000 (which corresponded to the
second instalment of the sign-on fee, that was outstanding) by 30 September 2023.
5.
On 13 September 2023, the parties decided to put an end to the contract by signing a
termination agreement. However, whereas the Claimant argues that a termination
agreement containing a higher amount payable by the club to the player was concluded
(hereinafter: the Player’s termination agreement); the club maintains that a different
termination agreement was concluded, containing a lower amount payable by the club to
the player (hereinafter: the Club’s termination agreement). The contents of both
termination agreements are displayed here below:
Player’s termination agreement (an unsigned copy thereof was provided along with the
Claimant’s claim and a signed copy thereof was provided along with the Claimant’s replica):
6.
Clause 2 of the Player’s termination agreement establishes that the club would pay to the
player the amount of MAD 3,450,000 as termination fee, payable in 6 different instalments,
as follows:
-
MAD 800,000 by 16 September 2023;
pg. 3
REF. FPSD-12403
7.
MAD 700,000 by 20 October 2023;
MAD 600,000 by 15 December 2023;
MAD 400,000 by 15 February 2024;
MAD 400,000 by 15 April 2024;
MAD 550,000 by 30 June 2024.
Clause 3 of the Player’s termination agreement states that, in case of non-payment of any
of the relevant instalments of the termination fee for more than 10 days, the subsequent
instalments would fall due (acceleration clause) and the player would be equally entitled to
request the remainder of the amounts due until 30 June 2025, as per the contract.
Club’s termination agreement (a signed copy thereof was provided by the Respondent
along with its reply to the claim and – upon request from the FIFA general secretariat – the
original specimen thereof was sent to FIFA):
8.
Clause 2 of the Club’s termination agreement establishes that the club would pay to the
player the amount of MAD 800,000 as termination fee, payable in 6 different instalments,
as follows:
-
9.
MAD 200,000 by 16 September 2023;
MAD 200,000 by 20 October 2023;
MAD 100,000 by 15 December 2023;
MAD 100,000 by 15 February 2024;
MAD 100,000 by 15 April 2024;
MAD 100,000 by 30 June 2024.
Clause 3 of the Club’s termination agreement states that, in case of non-payment of any of
the relevant instalments of the termination fee for more than 10 days, the subsequent
instalments would fall due (acceleration clause), and the player would be equally entitled
to request the remainder of the amounts due until 30 June 2025, as per the contract.
10. On 5 June 2023, the player lodged a claim against the club in front of FIFA (FPSD-10443),
whereby the player requested the club be ordered to pay to him the amount of MAD
750,000 due by 31 March 2023, i.e. the second instalment of the sign-on fee as per the
contract. Within the said proceedings, the parties reached a settlement agreement,
whereby the club committed to make said payment by 30 September 2023.
11. On 21 August 2023, the club allegedly contacted the player’s agent in writing, informing the
latter that the club would like to offer the player to prematurely terminate the contract
against payment of a termination fee of MAD 3,450,000, offer that the player rejects (note:
see pages no. 6-7 of the replica – Whatsapp conversation allegedly maintained with the
club’s vice-president).
pg. 4
REF. FPSD-12403
12. On 19 September 2023, the player put the club in default of payment in the amount of MAD
7,450,000 and informing the club that, instead of having paid the total amount due as first
instalment of the Player’s termination agreement, the club only paid the amount of MAD
200,000 for said consideration.
13. By means of his email of 22 August 2023, the player put the club in default, urging the latter
to reintegrate him with the team and to comply with its financial obligations towards the
player.
14. Between 23 August 2023 and 7 September 2023, the player’s agent allegedly maintained
conversations – via Whatsapp – with the club’s vice-president and the club’s treasurer,
whereby the player’s agent is informed of the delicate financial situation of the club, which
is already making a great effort when committing to pay to the player the amount of MAD
3,450,000 as termination fee.
15. Upon request from the FIFA general secretariat, the Respondent has provided the original
of the Club’s termination agreement.
16. The player signed a new employment contract with the Libyan club, Alahly Benghazi SC
(hereinafter: the new club), valid as from 5 October 2023 until 31 July 2024, whereby the
player is entitled to a total fixed remuneration of USD 170,000 (MAD 1,737,000
approximately – conversion rate applicable on the date of the signature of the new
contract).
II. Proceedings before FIFA
a. Position of the Claimant
17. On 25 October 2023, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration in the total amount of MAD 8,346,000, plus 5%
interest p.a., broken down by the Claimant as follows:
For the season 2022/2023: MAD 600,000
-
MAD 600,000 corresponding to the outstanding part of the sign-on fee
instalments payable during the 2022/2023 season, as per clause 5 of the contract.
For the season 2023/2024: MAD 3,386,000
-
MAD 360,000 corresponding to the whole salaries payable for the 2023/2024
season (12 salaries of MAD 30,000 each), as per clause 5 of the contract;
pg. 5
REF. FPSD-12403
-
MAD 26,000 corresponding to 2 monthly housing expenses.
-
MAD 3,000,000 corresponding to the 4th, 5th and 6th instalments of the sign-on fee
due as per clause 5 of the contract.
For the season 2024/2025: MAD 4,360,000
-
MAD 360,000 corresponding to the whole salaries payable for the 2024/2025
season (12 salaries of MAD 30,000 each), as per clause 5 of the contract;
-
MAD 4,000,000 corresponding to the 7th , 8th and 9th instalments of the sign-on fee
due as per clause 5 of the contract.
18. In addition, the Claimant requested the Respondent be ordered to pay the amount of EUR
5,000 as legal costs.
19. In his claim, the player argued that, upon the club’s non-compliance with the terms of the
Player’s termination agreement, the player – cf. clause 3 of the Player’s termination
agreement – is entitled to request the full amount due as per the contract, i.e. the
remuneration thereunder payable between June 2023 and June 2025.
20. In addition, the player explained that, upon signing the Player’s termination agreement, the
club did not provide the player with a signed copy thereof, in blatant breach of its
contractual obligations towards the player, and that, therefore, no signed specimen
thereof has been provided along with the claim.
b. Position of the Respondent
21. In its reply, the club maintained that the parties never entered into the Player’s termination
agreement, but into the Club’s termination agreement. In this respect, the Respondent
points out that the specimen of the Player’s termination agreement provided along with
his claim is not signed.
22. The above being said, the Respondent argued – inter alia – the following:
-
That the Respondent paid an amount of EUR 332,000 to the player’s former club (Ittihad
Tanger Club) as transfer compensation in order to sing the player.
-
That – upon mutual decision – the parties decided to terminate their contractual
relationship and signed the Club’s termination agreement, which is the only valid
agreement reflecting the parties’ rights and obligations derived from the termination of
the contract. On this note, the club stressed that the Club’s termination agreement is
signed and has been notarized (the specimen of the Club’s termination agreement
pg. 6
REF. FPSD-12403
provided by the Respondent has been stamped by the Municipality of Casablanca – see
pages no. 29-32 of the reply to the claim).
-
-
That, following the termination of the contract, the player signed a new contract with his
new club on 5 October 2023, which demonstrates that the player had great interest in
terminating the contract with the Respondent on 13 September 2023.
In this respect, the Respondent wished to point out that the player was the party
benefitting from the early termination of the contract, insofar as “by this termination, the
Club loses the chance to benefit from the Player’s services nor the paid transfer fee for the
Player, as it was agreed the Player would be released for free and receive his release letter
upon his request in order to make best personal benefits when he be signing for another club
as free agent.” In this context, the Respondent held that it would be unreasonable that
the Respondent agreed to pay to the Claimant the amounts contained in the Player’s
termination agreement.
-
That on the very same date on which the Club’s termination agreement was signed by
the parties, the Respondent made the payment of MAD 200,000 in favour of the player
(the first instalment due as per clause 2 of the Club’s termination agreement), in
compliance with what the parties agreed.
-
That, on 17 October 2023, the club made the payment of the second instalment due as
per the Club’s termination agreement (note: document on file – Annexe 5 to the reply to
the claim: page no. 34 of the reply to the claim, which is a banking order to perform the
said payment to the player), which proves that the only agreement ever intended to be
complied with was the Club’s termination agreement.
-
That, consequently, the club has duly complied with its financial obligations towards the
player, as the payments due under the Club’s termination agreement have been duly
and timely made and, therefore, the Claimant has no right to claim the residual value of
the contract, as clause 3 of the Club’s termination agreement cannot be considered as
activated.
23. In view of all of the above, the Respondent requested the claims of the Claimant be fully
rejected.
c. Claimant’s replica
24. In his replica, the player maintained – inter alia – the following:
-
That the player had never seen the Club’s termination agreement, which has been
fabricated by the club and that “the fact that the Respondent refused to give a signed
copy of the document to the Claimant the day of the signing allowed the Respondent to
modify the document and now rely on a fake document.”
pg. 7
REF. FPSD-12403
-
That the only termination agreement concluded by the parties is the Player’s
termination agreement and that its signed copy was sent by an anonymous employee
of the club to the player on 17 December 2023. In this respect, the Claimant provides
an email of the relevant email whereto the signed version of the Player’s termination
agreement is attached and where it is stated that the singed version of the Player’s
termination agreement is provided as an act of justice and ethic.
That the signature of the Player’s termination agreement was the result of the
Respondent’s non-compliance with its financial obligations towards the player –
evidence of which is that the player initiated a previous procedure against the
Respondent in front of FIFA, back in May 2023 (FPSD-13097) – and that it was not in
the interest of the player to search for another club and that it would “make no sense”
that the player accepted to only receive the amount of MAD 800,000 as termination
fee considering the residual value of the contract, which amounted to MAD
7,000,000.
-
-
That neither the Player’s termination agreement nor the allegedly concluded Club’s
termination agreement have been notarized, as the document submitted have only
been stamped by the Municipality of Casablanca.
25. In view of the above, the Claimant reiterated his request for relief.
d. Respondent’s final comments
26. In its final comments, the club reiterated its previous arguments and rejected the
allegations of the Claimant. In addition, the Respondent wished to highlight the following
aspects:
-
That “the legalization process by the municipality is one of its main competences and duties,
and it confers legal authenticity to the Protocol. Accordingly, if the Player alleges that the
legalization before the municipality affected the validity of the content of the Protocol or its
legal weight, he ought to provide specific reasons or evidence to support his argument.”
-
That “it could not be reasonable to believe that a professional player with such huge
experience would sign an agreement before an official entity without receiving a copy thereof
as both Parties received their copies, as exactly what happens with all contracting
procedures.”
-
That the Claimant has not met his burden of the proof to demonstrate that the Player’s
termination agreement was concluded, as “he failed to provide any evidence that would
support that the Protocol was forged by the Club, nor he submitted any valid original
contract to reinforce his allegations.”
-
As for the signed copy of the Player’s termination agreement provided along with the
Claimant’s replica, the club held that “the timing of receiving this email (one day before
pg. 8
REF. FPSD-12403
submitting his response on 18 December 2023) creates suspicions regarding the credibility
of the incident especially when the Player submitted that he received that email from an
unknown person with email holding partially name of the Club, the content of which can
never be written by any employee at the Club, the only logical explanation is that the Player
is the one who created that email address with bad faith and sent the forged copy.”
-
That the Whatsapp messages provided by the Claimant cannot be considered, as the
Claimant has not provided sufficient evidence of their veracity. In addition, the
Respondent held that those conversations – if ever maintained – were held: with an
employee of the club that was no longer employed by the club when the Club’s
termination agreement was concluded (note: supporting document provided: the club’s
vice-president left his position at the club on 1 September 2023 – see page no. 58 of the
duplica) and before the date on which the Club’s termination agreement was
concluded, which is the last (and only) agreement entered into between the parties.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 25 October 2023 and submitted
for decision on 10 May 2024. Taking into account the wording of art. 34 of the March 2023
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
28. 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 October 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Gabonese player
and a Moroccan club.
29. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (February 2024 edition) and
considering that the present claim was lodged on 25 October 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
pg. 9
REF. FPSD-12403
b. Burden of proof
30. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
31. 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
32. The foregoing having been established, the Chamber moved to the substance of the matter
and observed that the following events remained undisputed or were acknowledged by
the parties or proven by them within the scope of the present proceedings:
-
These are the second proceedings initiated before FIFA in the year 2023 involving the
same parties, as the club failed to make the payment of the second instalment of the
sign-on fee as per clause 5 of the contract. The parties signed an amicable settlement
concerning said non-payment and the proceedings FPSD-10443 were consequently
closed.
-
The parties agreed to put an end to their contractual relationship on 13
September 2023.
-
Thereafter, the club made 2 payments in favour of the player: a first payment of
MAD 200,000 on 13 September 2023 and a second payment of MAD 200,000 on
17 October 2023.
-
On 5 October 2023, the player signed a new contract with his new club, valid for
the 2023/2024 season and against payment of a total fixed remuneration of USD
170,000 (MAD 1,737,000 approximately.
-
The Claimant has not been able to provide the original specimen of the Player’s
termination agreement.
pg. 10
REF. FPSD-12403
-
The Respondent has provided the original specimen of the Club’s termination
agreement.
-
The Claimant put the Respondent in default of payment upon the performance
of the non-complete payment of the first instalment due as per the allegedly
concluded Player’s termination agreement.
33. The above being said, the Chamber stated that the key question in the present case is to
determine whether the parties entered into the Player’s termination agreement or into the
Club’s termination agreement. After a careful analysis of the arguments brought forward
by the parties and the evidence submitted by them, the Chamber ascertained that several
aspects need to be analysed:
1.) Was in the player’s interest or in the club’s interest to prematurely terminate the contract?
Is it relevant?
34. It is undisputed that the club – back by the end of March 2023 – faced financial difficulties
that led to the club’s non-payment of the second instalment of the sign-on fee (FPSD-10443)
and that, in August 2023, the player and the club started negotiations aimed at the
premature termination of the contract.
35. Whereas the Claimant has provided Whatsapp screenshots of conversations allegedly
maintained between 21 August 2023 and 7 September 2023, where alleged members of
the club offered the player to terminate the contract against payment of MAD 3,450,000,
the club argues that it was the player the party that requested to terminate the contract,
evidence of which would be that the player signed a new contract already on 5 October
2023.
36. Although the fixed remuneration payable for the season 2023/2024 under the contract
(MAD 3,360,000) and under the new contract (MAD 1,737,000) substantially differ, the
Chamber pointed out that it is rather speculative to conclude that the club was the party
that held an interest in the premature termination of the contract, also considering that, if
the new remuneration of the player is jointly considered together with the termination fee
due under the Club’s termination agreement (a total of MAD 2,537,000), the monetary
difference is – in the opinion of the Chamber – not a decisive element to determine that
the player’s acceptance to receive the termination fee agreed under the allegedly
concluded Club’s termination agreement “makes no sense” as stated by the Claimant.
Equally, the fact that the player signed a new contract shortly after the termination of the
contract at stake is, in the opinion of the Chamber, not a decisive element to presume that
the player was the party interested in the premature termination of the contract.
37. In any case, continued the DRC, considering that the parties maintain completely opposite
positions as to the circumstances surrounding the premature termination of the contract,
pg. 11
REF. FPSD-12403
it is not sufficiently relevant to establish which party had a greater interest in seeking the
early termination of the contract but to establish, in view of the evidence provided, whether
the parties entered into any of the abovementioned termination agreements.
2.) Which of the termination agreements provided by the parties can be considered as
entered into between them?
38. The Claimant – when initiating the present proceedings – only submitted an unsigned
version of the Player’s termination agreement, to which the player seems to have taken
pictures before an eventual signing thereof. On its part, the club – on the occasion of its
first procedural opportunity – provided a signed version of the Club’s termination
agreement, stamped by the Municipality of Casablanca. Thereafter, by means of his
duplica, the player presented a signed version of the Player’s termination agreement,
arguing that an anonymous employee of the club provided the player with a signed copy
of said agreement as an act of justice and ethic.
39. After comparing both termination agreements, the Chamber determined that one can
identify that their content coincide with the difference of the amount of the termination
fee, insofar as the Player’s termination agreement refers to an amount of MAD 3,450,000
and the Club’s termination agreement refers to the sum of MAD 800,000.
40. In this conflicting position, the Chamber determined that the following actions and
omissions undertaken by the parties as from the date on which – undisputedly – they
terminated the contract (13 September 2023) gain decisive importance:
-
The player (allegedly) was not provided with a copy of the termination agreement.
-
The club makes a payment of MAD 200,000 to the player on 13 September 2023,
allegedly as first instalment of the Club’s termination agreement.
-
The club makes a payment of MAD 200,000 to the player on 17 October 2023 (not
disputed by the Claimant), allegedly as second instalment of the Club’s
termination agreement.
-
The Claimant only provides a signed copy of the Player’s termination agreement
along with his replica, as it was only provided to him in the meantime by a club’s
employee (allegedly). Also only along his replica did the player provide the
Whatsapp screenshots of the conversations allegedly maintained between the
player and the members of the club where the latter offered the player to
prematurely terminate the contract.
-
Whereas the player has not been able to provide the original signed version of
the Player’s termination agreement, the club has been able to provide the original
signed version of the Club’s termination agreement.
pg. 12
REF. FPSD-12403
41. In view of the above and on the basis of what art. 13 para. 5 of the Procedural Rules
stipulates, the Chamber decided that the argumentation of the club is to be accepted: the
Respondent – unlike the Claimant – has met its burden of the proof when providing the
original specimen of the relevant termination agreement (in coherence with the
jurisprudence of the FIFA Football Tribunal in cases where forgery allegations are wielded).
42. In addition, the following facts shall be considered:
1.) The Claimant has only provided an allegedly signed copy of the Player’s termination
agreement by an anonymous source with an identical content to the Club’s
termination agreement upon receipt of a copy thereof when provided by the
Respondent along with its reply to the claim and in its second procedural opportunity
to do so.
2.) The Claimant only provided conversations allegedly maintained with the club via
Whatsapp along with his replica, conversations that were allegedly held between
August and September 2023 and that, hence, could and should have been provided
along with the player’s claim on 25 October 2023.
3.) The Respondent, unlike the Claimant, provided further evidence in connection with
the conclusion of the Club’s termination agreement, insofar as the document
provided by the Respondent was legalized, which confers greater reliability to the
Club’s termination agreement.
43. In view of all of the above and on the evidence provided by the parties, the Chamber, in a
decision adopted by majority, decided that it is to be concluded that the parties entered
into the Club’s termination agreement, with which the Club has, undisputedly and so far,
until the date on which the Claimant lodged his claim on 25 October 2023, complied.
ii. Consequences
44. Having stated the above and insofar as the Respondent has proven having duly complied
with its obligations in connection with the Club’s termination agreement until the moment
when the Claimant lodged his claim in front of the FIFA Football Tribunal, the DRC decided
that the claim of the Claimant needs to be rejected.
d. Costs
45. 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.
pg. 13
REF. FPSD-12403
46. 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. 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, Axel Meye Me Ndong, is rejected.
2.
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14