Labour Disputes
Texto da decisão
REF. FPSD-9406
Decision of the
Dispute Resolution Chamber
passed on 8 June 2023
regarding an employment-related dispute concerning
the player Toufik Moussaoui
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Alexandra GOMEZ BRUINEWOUD (Uruguay & The Netherlands), member
Khalid AWAD ALTHEBITY (Saudi Arabia), member
CLAIMANT:
Toufik Moussaoui, Algeria
Represented by Slim Boulasnem
RESPONDENT:
Olympique Club Khouribga, Morocco
pg. 2
REF. FPSD-9406
I. Facts of the case
1.
On 24 August 2022, the Algerian player Toufik Moussaoui (hereinafter: the Player or the
Claimant) and the Moroccan club Olympique Club Khouribga (hereinafter: the Club or the
Respondent) concluded an employment contract (hereinafter: the contract) valid as from 26
August 2022 until 30 June 2024.
2.
According to clause 4.1 a) of the contract, the Respondent undertook to pay the Claimant
a monthly net salary of MAD 12,000.
3.
According to clause 4.1 B) of the contract the Claimant was entitled to the following
concepts:
-
-
-
4.
A performance bonus according to the bonuses’ policy of the Club to be calculated
depending on the participation rate of the Player and the results achieved in the
official matches.
A match bonus calculated depending on the participation and result achieved on the
official competitions.
A signature bonus of MAD 700,000 net payable in 3 instalments:
• MAD 250,000 at the signature of the contract;
• MAD 250,000 in February 2023;
• MAD 200,000 at end of the 2022/2023 season.
MAD 3,000 as housing allowance or a furnished apartment.
For the 2023/2024 season, a performance bonus of MAD 700,000 to be paid in 3
instalments.
Clause 8 the contract read inter alia as follows:
“Le présent contrat peut être résilié avant son terme :
- En cas d’accord entre les parties ;
- En cas de force majeure ;
- En cas de faute grave de l’une ou l’autre des parties pour une juste cause au sens du
Règlement sur le statut et le transfert des joueurs de la FRMF et la FIFA.
- Le présent contrat peut être résilié avant terme d’un commun accord entre les parties ou
à l’initiative de l’une des parties, (exprimé d’un commun accord sans causer des
préjudices) ;
En cas de résiliation unilatérale avant terme non motivée par la faute grave de l'autre
partie ou par un cas de force majeure, et dans ce cas uniquement, des dommages-intérêts
dont le montant équivaut au montant des rémunérations correspondant à la période
allant de la date de la résiliation jusqu’au terme fixé par le présent contrat, seront dus à
la partie qui n'est pas à l'origine de la résiliation unilatérale. ”
Freely translated by FIFA:
pg. 3
REF. FPSD-9406
“This contract may be terminated before its term:
- By agreement between the parties
- In the event of force majeure;
- In the event of serious misconduct on the part of either party for just cause within the meaning
of the Regulations on the Status and Transfer of Players of the FRMF and FIFA.
- The present contract may be terminated early by mutual agreement between the parties or at
the initiative of one of the parties, (expressed by mutual agreement without causing prejudice);in
the event of unilateral termination before the end of the term not motivated by serious
misconduct of the other party or by force majeure, and in this case only, damages equivalent to
the amount of the remuneration corresponding to the period from the date of termination until
the end of the term fixed by the present contract, will be due to the party which is not at the
origin of the unilateral termination”.
5.
On 5 January 2023, the Claimant put the Respondent in default and requested payment of
MAD 310,000 corresponding to the 1st instalment of the signature bonus (MAD 250,000)
and the salaries from August 2022 to December 2022 (MAD 60,000) granting a deadline of
10 days for the Club to remedy its default. The Claimant also requested the Club to provide
him with the signed copy of the contract within 72 hours.
6.
On 17 January 2023, the Claimant put the Respondent in default for the second time,
requesting (1) clarification on the non-registration of the Player within 48 hours and (2)
payment of MAD 310,000 as stated in his first default notice within 4 days.
7.
On 31 January 2023, the Claimant sent a termination notice to the Club, as the salaries
allegedly remained unpaid.
8.
In accordance with the information available in the Transfer Matching System (TMS), the
2022/2023 season in Morocco started on 1 July 2022 and finished on 30 June 2023.
9.
Also on 31 January 2023, the Player signed an employment contract with the Algerian club
Paradou AC valid as from the date of signature until 30 January 2025. The Claimant is
entitled to a gross monthly salary of DZD 141,127.47.
II. Proceedings before FIFA
10. On 24 February 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
11. The Claimant requested payment of the outstanding remuneration and compensation for
breach of contract.
pg. 4
REF. FPSD-9406
12. The Claimant argued, inter alia, that since the beginning of the contract the Club has not
paid his salaries, and at the moment of the termination more than 5 salaries were due.
Therefore, the Claimant considered that he terminated the contract with just cause, hence
should be entitled to compensation under art. 17 of the Regulations on the Status and
Transfer of Players (RSTP).
13. The Claimant requested the following relief:
-
The payment of the outstanding remuneration disclosed as follows:
o MAD 12,000 corresponding to August 2022 salary plus 5% interest p.a. as from 1
November 2022;
o MAD 12,000 corresponding to September 2022 salary plus 5% interest p.a. as
from 1 December 2022;
o MAD 12,000 corresponding to October 2022 salary plus 5% interest p.a. as from
1 November 2022;
o MAD 12,000 corresponding to November 2022 salary plus 5% interest p.a. as
from 1 December 2022;
o MAD 12,000 corresponding to December 2022 salary plus 5% interest p.a. as from
1 January 2023;
o MAD 12,000 corresponding to January 2023 salary plus 5% interest p.a. as from 1
February 2023;
o MAD 250,000 as signature bonus plus 5% interest p.a. as from 26 August 2022.
-
The payment of compensation for breach of contract amounting to MAD 1,555,000
plus 5% interest as from the date of termination, taking into account the following
amounts:
o 2022/2023 salaries: MAD 60,000;
o 2023/2024 salaries: MAD 144,000;
o Remaining amount of the signature bonus paid on the 2022/2023 season: MAD
450,000;
o Housing allowance: MAD 51,000;
o 2022/2023 performance bonus: MAD 150,000;
o 2023/2024 performance bonus: MAD 700,000.
In case the Player signs a new contract, he requested 6 monthly salaries as additional
compensation.
To apply sporting sanctions on the Club.
-
b. Position of the Respondent
14. The Respondent failed to submit a response to the claim within the stipulated timeframe.
pg. 5
REF. FPSD-9406
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 February 2023 and
submitted for decision on 8 June 2023. 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.
16. 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 par. 1 lit. b)
of the RSTP (May 2023 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 player from Algeria and a club from Morocco.
17. 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 RSTP (May 2023 edition), and considering that the present claim was lodged
on 24 February 2023, the October 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
18. 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 TMS.
c. Merits of the dispute
19. 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.
pg. 6
REF. FPSD-9406
i. Main legal discussion and considerations
20. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the main dispute between the parties is the justice
of the early termination of the contract by the Claimant due to the alleged non-payment of
certain financial obligations by the Respondent.
21. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the contract was terminated with just cause
by the Claimant.
22. In doing so, the Chamber underlined that the Respondent failed to present its reply to the
claim of the Claimant, and therefore the decision would be made on the basis of the
documentation on file, that is, the argumentation and evidence filed by the Claimant, in
line with article 14 par. 1 of the Procedural Rules.
23. In the Chamber’s view, it remained undisputed that the Player’s remuneration
corresponding to MAD 250,000 as signature bonus and the monthly salaries from August
to December 2022, was overdue at the termination date, thus more than two salaries.
Furthermore, the Chamber noted that the Claimant has provided written evidence of
having put the Respondent in default on 5 January 2023, and on 17 January 2023 before
unilaterally terminating the contract on 31 January 2023. The Chamber further noted that
the Respondent did not contest the termination on the basis that it paid any of the
instalments mentioned.
24. The DRC highlighted in consideration of the foregoing that the Respondent had repeatedly
and for a significant period been in breach of its contractual obligations towards the
Claimant. Consequently, the Chamber concluded that the Claimant had just cause to
unilaterally terminate the employment relationship.
ii. Consequences
25. 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.
26. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, are the following: MAD 250,000
as signature bonus, MAD 2,324 as pro rata salary (6/31 days) of August 2022, MAD 12,000
as the salary of September 2022, MAD 12,000 as the salary of October 2022, MAD 12,000
as the salary of November 2022, MAD 12,000 as the salary of December 2022, and MAD
12,000 as the salary of January 2023.
pg. 7
REF. FPSD-9406
27. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e., MAD
312,324.
28. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. as follows:
•
•
•
•
•
•
•
5% interest on the amount of MAD 250,000 from 26 August 2022 until the date of
effective payment;
5% interest on the amount of MAD 2,324 as from 1 November 2022 until the date
of effective payment, as claimed, in line with the principle ne ultra petita;
5% interest on the amount of MAD 12,000 as from 1 November 2022 until the date
of effective payment;
5% interest on the amount of MAD 12,000 as from 1 December 2022 until the date
of effective payment as claimed, in line with the principle ne ultra petita;
5% interest on the amount of MAD 12,000 as from 1 December 2022 until the date
of effective payment;
5% interest on the amount of MAD 12,000 as from 1 January 2023 until the date of
effective payment;
5% interest on the amount of MAD 12,000 as from 1 February 2023 until the date of
effective payment.
29. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
30. 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 took note
of the wording of clause 8 of the contract, which established that “[…] in the event of
unilateral termination before the end of the term not motivated by serious misconduct of the
other party or by force majeure, and in this case only, damages equivalent to the amount of the
remuneration corresponding to the period from the date of termination until the end of the term
pg. 8
REF. FPSD-9406
fixed by the present contract, will be due to the party which is not at the origin of the unilateral
termination”.
31. After analysing the content of the aforementioned clause, the Chamber concluded that it
fulfilled the criteria of reciprocity and proportionality, in line with the longstanding
jurisprudence of the Football Tribunal, and therefore was to be applied in the case at hand
to determine the amount of compensation payable by the Respondent to the Claimant.
32. Consequently, the Chamber decided that the amount of MAD 1,405,000, as per the
compensation clause agreed between the parties in the contract, is due to the Player by
the Club.
33. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as of 31 January 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
34. 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.
35. 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.
36. 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.
37. 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.
pg. 9
REF. FPSD-9406
38. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
39. 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.
40. 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.
41. 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-9406
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Toufik Moussaoui, is partially accepted.
2.
The Respondent, Olympique Club de Khouribga, must pay to the Claimant the following
amounts:
-
MAD 250,000 as outstanding remuneration plus 5% interest p.a. as from 26 August
2022 until the date of effective payment;
-
MAD 2,324 as outstanding remuneration plus 5% interest p.a. as from 1 November
2022 until the date of effective payment;
-
MAD 12,000 as outstanding remuneration plus 5% interest p.a. as from 1 November
2022 until the date of effective payment;
-
MAD 24,000 as outstanding remuneration plus 5% interest p.a. as from 1 December
2022 until the date of effective payment;
-
MAD 12,000 as outstanding remuneration plus 5% interest p.a. as from 1 January
2023 until the date of effective payment;
-
MAD 12,000 as outstanding remuneration plus 5% interest p.a. as from 1 February
2023 until the date of effective payment;
-
MAD 1,405,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 31 January 2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
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.
pg. 11
REF. FPSD-9406
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-9406
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. 13