Labour Disputes
Texto da decisão
REF FPSD-6456
Decision of the
Dispute Resolution Chamber
passed on 27 October 2022
regarding an employment-related dispute concerning the player Guillem
Rodriguez Martinez
COMPOSITION:
Lívia Silva Kägi (Brazil & Switzerland), Acting Deputy Chairperson
Mario Flores Chemor (Mexico), member
Johan VAN GAALEN (South Africa), member
CLAIMANT:
Guillem Rodriguez Martinez, Spain
Represented by Ruiz-Huerta & Crespo Abogados
RESPONDENT:
Moghreb Athletic Tetouan, Morocco
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I. Facts of the case
1.
On 1 September 2021, the Spanish player, Guillem Rodriguez Martinez (hereinafter: the
Claimant or the player), and the Moroccan club, Moghreb Athletic Tetouan (hereinafter:
the Respondent or the club) concluded an employment agreement valid as from 26 August
2021 until 30 June 2023 (hereinafter: the contract).
2.
Under the contract the player was entitled to inter alia the following:
a. MAD 22,000 net as salary, payable by the end of each month;
b. A sign-on fee of MAD 1,476,000, payable as follows:
i. MAD 380,000 by 5 January 2022;
ii. MAD 380,000 by 16 June 2022;
iii. MAD 230,000 by 15 September 2022;
iv. MAD 230,000 by 5 January 2023;
v. MAD 256,000 by 15 June 2023.
c. Furnished accommodation;
d. A car.
3.
Per the contract, the cited amounts are payable net of taxes. The contract however bears
no disposition regarding the issuance of tax certificates in favour of the player.
4.
Art. 14 of the contract reads as follows (freely translated to English):
“In case of dispute and/or litigation arising from the execution and/or interpretation of the
clauses of the present contract, the parties are obliged to use all means and procedures in
order to settle the dispute amicably.
In the event of a dispute, the dispute shall be referred by either party to the Dispute
Resolution Chamber of the Royal Moroccan Football Federation. The decisions of the Dispute
Resolution Chamber of the Royal Moroccan Football Federation are subject to appeal in
accordance with the provisions of the statutes and regulations of the FRMF.”
5.
On 2 November 2021, the player sent a default notice to the club stating that (a) he had
contacted the Royal Moroccan Football Federation (FRMF) and received confirmation that
he had not been registered with the club; (b) the club failed to pay him any amounts under
the contract. As such, the player urged the club to cure the breaches within 15 days, failing
which he would terminate the contract.
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6.
On 17 November 2021, the club allegedly made a deposit in a local bank in favor of the
player in an amount of MAD 44,000. The parties dispute if the player was made aware of
this deposit.
7.
On 19 November 2021, the player terminated the contract in writing. The player
communicated this at 8h54 local time via the electronic application WhatsApp to the club,
as well as via e-mail at 9h15.
8.
On 19 November 2021 at 12h41 local time, the club informed the player via WhatsApp
that the aforementioned deposit had been made on his behalf.
9.
On 24 February 2022, the player and the Dutch club, Ado Den Haag, signed an
employment contract with the following conditions:
a. Term: 25 February 2022 to 30 June 2022, with an option to further extent
said term until 30 June 2023. Said option was duly exercised as confirmed by
the player.
b. Salaries:
i. Season 2021/2022: EUR 3,800 gross, which the player states is
equivalent to EUR 2,096.09 net);
ii. Season 2022/2023: EUR 4,167 if Ado Den Haag played in the Dutch
second division, which it did. The player holds that this amount is
equivalent to EUR 2,298.51 net.
II. Proceedings before FIFA
10. On 22 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the Claimant
11. The Claimant sought outstanding remuneration and compensation, and firstly argued
that FIFA is competent to hear this dispute since the National Dispute Resolution
Chamber (NDRC) of the FRMF does not comply with the principle of equal representation
set out under FIFA Circular no. 1010. The player further asserts that the contract mentions
FIFA in several dispositions.
12. As to the substance, the player argues that he had just cause to terminate the contract
under art. 14 and 14bis of the FIFA Regulations on the Status and Transfer of Players
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(RSTP) on account of his lack of registration and payment of salaries. He denies having
receive any monies from the club and confirms that on 19 November 2021 the club
supposedly tried to make a payment, but that to date no monies have ever been paid.
13. The Claimant sought the following:
“In view of all the foregoing, on behalf of the Claimant we herein request the FIFA Dispute
Resolution Chamber of the Football Tribunal to issue a decision in the following terms:
1. To accept this claim;
2. To determine that the Contract has been terminated with just cause by the Player under
Article 14 and 14bis of the FIFA RSTP, and by doing so:
2.1. To confirm that the Player was free of any contract following his termination with just
cause;
2.2. To order the Respondent to pay outstanding salaries in the amount of 44,000 MAD net,
together with the relevant tax certificates, plus 5% (five percent) per annum interest rate:
2.2.1 from 1 October 2021 on the amount of 22,000 MAD net until full and entire payment
2.2.2 from 1 November 2021 on the amount of 22,000 MAD net until full and entire payment
2.3. To order the Respondent to pay the signing fees and compensation in the total amount
of 1,865,477.46 MAD net (two million one hundred sixteen thousand Moroccan Dirhams),
together with the relevant tax certificates, plus 5% (five percent) per annum interest rate
from 19 November 2021 until full and entire payment;
3. To ban the Club from registering any new players in accordance with Article 17.4 of the
FIFA RSTP;
4. To fix a sum of 20,000.00 MAD (twenty thousand Moroccan Dirhams) to be paid by the
Respondent to the Claimant in order to assist the latter in the payment of costs and
expenses.
5. Accordingly, to order the Respondent to pay all legal fees and court costs, if any.”
14. The player indicated in his calculations the following:
a. The compensation comprises of the unpaid amounts under the contract plus
its remaining part after the termination to a total of MAD 2,160,000, broken
down as follows:
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i. 22 monthly salaries of MAD 22,000 each, totalling MAD 484,000;
ii. Seasonal sign-on fee of MAD 760,000 and MAD 716,000 respectively;
iii. Unpaid rent and car, estimated at: MAD 10,000 per month,
amounting to MAD 200,000. The player clarified that he paid MAD
5,000 as rent and that “The Club never provided the Player with a car,
but the Player estimates the price being equal to the rent”.
b. The player clarified that he received the net amount of EUR 2,096.09 from
Ado Den Haad in the season 2021/2022 and EUR 2,298.51 for the season
2022/2023. As such, he deems that MAD 382,522.54 shall be deducted as
mitigation from the residual value of the contract of MAD 640,000, thus
resulting in MAD 257,477.46.
c. The player seeks MAD 132,000 as six months’ worth of salaries as additional
compensation due to egregious circumstances and his lack of registration.
d. The player asks for 5% interest p.a. as follows: “Therefore, a five percent (5%)
per annum rate shall be applied to any amount granted until the date of effective
payment as from 1 October and 1 November with regard to the outstanding
salaries of October and November, and 19 November 2021 with regard to the
residual amount of compensation.”
b. Reply of the Respondent
15. In its reply, the club denied that the player was unregistered and argued that his
registration was solely delayed because of administrative issues with the FRMF, but that
he was able to play in the first match of the season based on a special license pending his
permanent registration. The club denies that any issues with the player registration
entitled him to terminate the contract.
16. As to the payment of salaries, the club confirms that there was an issue because the club’s
internal audit department would only allow payments to be made to registered players.
17. At the same time, the club argued that because the player did not have a bank account,
the club president made a deposit on 17 November 2021 in the local bank to the benefit
of the player, but that the player did not collect it. The club furthermore argued that 18
November 2021, the last day of the deadline given by the player in his default notice, was
a non-working day and as such the deadline would elapse only on 19 November 2021 in
accordance with Moroccan Law and the FRMF Regulations.
18. In support of this position, the club filed a bank statement which reads as follows (freely
translated to English):
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“We hereby certify that a transfer order (Provision) was filed by Mr. MOHAMED REDOUANE
EL GHAZI on November 17, 2021 for an amount of DH 44,000.00 to be debited from his
account N° 005 720 000000 200 0783248 47 opened on our books, for the benefit of Mr.
GUILLEM RODRIGUEZ MARTINEZ. who did not show up to collect it, hence the transaction
was not executed.”
19. The club concluded its submission by stating that the player abandoned the club and
signed a new contract in the Netherlands, therefore no monies are due to the player.
c. Rejoinder of the Claimant
20. The player argued that the club admitted that his salaries were owed based on the club’s
response. At the same time, the player insisted he had just cause to terminate the
contract on the basis of art. 14bis of the FIFA RSTP and submitted that he was only
informed of the deposit of MAD 44,000 after the contract had been terminated.
21. The player highlighted that he had never agreed with the club to receive his salaries in a
Moroccan bank account. He explained that he agreed to receive it via cheque or
alternatively via a credit method named “Wafacash”, by means of which he would receive
a QR Code enabling to withdraw his salaries at local banks. The player also contended
that the monies deposited to the bank were not made available to him, as there is no
proof that the monies were wired.
22. In continuation, the player refuted that the FIFA RSTP supported the club’s opinion that
the deadline for the club to comply would have been extended, since art. 14bis of the
RSTP clearly states 15 days.
23. The player further contends that he would in any case have just cause to terminate the
contract under art. 14 of the RSTP, not only because his benefits and salaries were not
paid, but because the player was never properly registered, even if any such provisional
registration had been obtained.
24. The player reiterated his requests for relief.
d. Final comments of the Respondent
25. The club reiterated its position, and confirmed that it owed MAD 44,000 that the player
did not collect from the local bank.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 June 2022 and submitted
for decision on 27 October 2022. Taking into account the wording of art. 34 of the October
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.
27. 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 FIFA RSTP (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 an Spanish player and a Moroccan club.
The Chamber furthermore noted that its competence remained unchallenged by the
parties and therefore confirmed it is competent to entertain the substance of the matter.
28. 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 FIFA RSTP (October 2022 edition) and considering that the present claim
was lodged on 22 June 2022, the March 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
29. 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
30. 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
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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
31. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this a claim for breach of contract, where the player
claims he had just cause to terminate the contract and argues that the club in this reply
acknowledged that it failed to pay him his salaries.
32. In this respect, the DRC noted that the player has apparently mistranslated or
misinterpreted the Respondent’s reply, for the latter the club argued that it could pay only
to player who were registered/qualified and not that the club had never acknowledged
that the player was entitled to the salaries. As such, the underlying issue is whether the
club effectively paid the player his late salaries per his default notice, and in a timely
fashion, and the consequences of such alleged payment vis-à-vis the termination of the
contract by the player.
33. Therefore, the DRC proceeded to examine the evidence and submissions on file to
determine whether the club could establish the timely payment, via bank deposit, of the
player’s earnings as requested in his default notice of 2 November 2021. In doing so, the
Chamber concluded that the argumentation of the club cannot be followed on the
following basis:
a. The bank statement filed by the club confirms that the transaction was not
completed since the player did not collect the monies.
b. The club confirmed in its final comments that the 2 salaries are still owed.
c. In any event, the player was only informed of the deposit after he had
already terminated the contract, and no evidence filed by the club suggests
otherwise.
34. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
35. The Chamber noted that the Claimant claims not having received any remuneration
under the contract up until the termination of the same. Furthermore, the Chamber
noted that the Claimant, as stated, has provided written evidence of having put the
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Respondent in default on 2 November 2021, i.e., at least 15 days before unilaterally
terminating the contract on 19 November 2021.
36. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, also as stated, the club expressly confirmed to owe 2
salaries to the player.
37. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations. As such, the Chamber found it
unnecessary to examine other aspects raised by the player, such as his registration issue
with the club.
ii. Consequences
38. 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.
39. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, is equivalent to 2 salaries under
the contract, amounting to MAD 44,000 in total.
40. The Chamber equally observed that the player has claimed a reimbursement of his rent.
To this end, the Chamber noted that the evidence of payment of such rent is quite unclear
and provides for one payment only of MAD 5,000. At the same time, the DRC could not
help to underline that such reimbursement request and corresponding evidence
remained unchallenged by the club. As a result, and grounded on the principle of the
burden of proof, the DRC decided that the player shall be entitled to his rent for the month
of September 2021, for this was substantiated in the Claimant’s claim, amounting to MAD
5,000.
41. 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 45,000.
42. 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. on the outstanding amounts as from their due dates until the date
of effective payment.
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43. 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.
44. 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.
45. 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.
46. 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 MAD 1,960,000 serves as the basis for the determination
of the amount of compensation for breach of contract, broken down as follows:
•
•
•
Salaries from November/21 to June/22: MAD 220,000
Salaries from July/22 to June/23: MAD 264,000
Sign-on fee: MAD 1,476,000
47. 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.
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48. Indeed, the player found employment with Ado Den Haag. In accordance with the
pertinent employment contract, the player earned approximately MAD 385,905 for the
relevant overlapping period, i.e., the remainder of season 2021/2022 and the entire
season 2022/2023, as detailed in continuation. The Chamber highlighted that the player
has provided evidence (payslips) of the amounts effectively paid by Ado Den Haag after
taxes and therefore the amounts were calculated net:
•
Season 2021/22: EUR 8,384 (4 * EUR 2,096), amounting to approx. MAD 89,973
•
Season 2022/23: EUR 25,576 (12 * EUR 2,298), amounting to approx. MAD
295,932.
49. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
50. In this respect, the DRC decided to award the amount of additional compensation of MAD
66,000, i.e., three times the monthly remuneration of the player at the time of the
termination. On this note, the Chamber confirmed that (a) the threshold of egregious
circumstances was not met in the case at hand and (b) no amounts should be factored in
for the alleged car rental, since the amounts indicated were speculative and not
sufficiently backed-up by corroborating evidence.
51. 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 MAD 1,640,095 to the player (i.e. MAD 1,960,000 minus MAD 385,905 plus MAD 66,000),
which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
52. 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 22 June 2022 (i.e., the date of claim) until the
date of effective payment.
53. Lastly, the Chamber confirmed that since there is no contractual disposition as to the
issuance of tax certificates in favour of the player, such request lacked legal grounds and
therefore should be rejected.
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iii. Compliance with monetary decisions
54. 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.
55. 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.
56. 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.
57. 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.
58. 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
59. 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.
60. 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.
61. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Guillem Rodriguez Martinez, is partially accepted.
2.
The Respondent, Moghreb Athletic Tetouan, has to pay to the Claimant the following
amounts:
a. MAD 27,000 net as outstanding remuneration plus 5% interest p.a. as from 1 October
2021 until the date of effective payment;
b. MAD 22,000 net as outstanding remuneration plus 5% interest p.a. as from 1
November 2021 until the date of effective payment;
c. MAD 1,640,095 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 22 June 2022 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.
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
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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).
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