Labour Disputes
Texto da decisão
REF FPSD-8082
Decision of the
Dispute Resolution Chamber
passed on 2 March 2023
regarding an employment-related dispute concerning
the player Peter Wilson
BY:
Frans DE WEGER (The Netherlands), Chairperson
Daan DE JONG (The Netherlands), member
Peter LUKASEK (Slovakia), member
CLAIMANT:
Peter Wilson, Sweden & Liberia
RESPONDENT:
Raja Athletic Casablanca, Morocco
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REF FPSD-8082
I. Facts of the case
1. On 7 August 2022, the player and the club entered into a contract valid as from the date of
signing signature until the end of the 2023/2024 Season (i.e. until 30 June 2024, unless there
are still official matches after said date).
2. Accordingly, the player was entitled to the following amounts:
- EUR 340,000 as sign-on fee (“Prime de Signature”), payable as follows:
o EUR 70,000 upon signature;
o EUR 50,000 on 28 February 2023;
o EUR 50,000 on 30 June 2023,
o EUR 70,000 on 1 September 2023;
o EUR 50,000 on 28 February 2024,
o EUR 50,000 on 30 June 2024.
- EUR 3,000 net as monthly salary during the season 2022/2023;
- EUR 3,000 net as monthly salary during the season 2023/2024.
- EUR 15,000 per season as performance bonus per season, subject to scoring at least 15
goals (all competitions taken into account).
3. Art. 2 par. 2 of the contract stipulated, inter alia, the following:
« L 'employeur et M. PETER WILSON conviennent expressément qu'en cas d' échec du test médical
de M PETER WILSON, les présentes seront considérées comme nuls et non avenus et les parties
seront déliées de tout engagement comme si le présent contrat n’ayant jamais été conclu entre
elles, ce qu'accepte M. PETER WILSON expressément et sans aucune réserve. »
Free translation into English :
"The employer and Mr. PETER WILSON expressly agree that in the event of Mr. PETER WILSON's
fails the medical test, the present contract shall be considered null and void and the parties shall
be released from all obligations as if the present contract had never been concluded between
them, which Mr. WILSON accepts without any reservation.”
4. On 15 August 2022, the player sent to the Club a warning letter, requesting the payment of
EUR 70,000 for the first instalment of the sign-on fee (EUR 7,000), as well as his salary of
August 2022 (EUR 3,000). The player granted 10 days to remedy the default.
5. On 22 August 2022, the player sent a reminder to the club, and requested the payment of
the amounts already requested in his previous letter, and granted a deadline until 27 August
2022, while warning that failure to “resolve all violations” will entitle him to terminate the
contract as per art. 17 RSTP.
6. The player further noted that “the Club insisted on breaching to contract and evicted [him]
from the hotel even though they are obliged to provide him with accommodation under
Article 4 of the employment contract.”
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7. In this letter, the player also noted that the club “prevented him from participating in training
sessions with the Club” and that “the Club did not allow [him] to undergo a medical examination
to force him to terminate his contract.”
8. On 30 August 2022, the player sent a final notice to the Club and granted 24 hours as a final
deadline before resolving all outstanding matter. The player underlined that the club did
not reply to the previous notices.
9. On the same date of 30 August 2022, the club replied to the player, indicating the following:
“Following the medical tests carried out, it appears from the medical report of the club doctor
that you have been declared unfit to play for RAJA CLUB ATHLETIC.
(…)
In conclusion, we regret to inform you that the contract signed between the two parties is
invalid.”
10. On 31 August 2022, the club provided a “release letter” to the player”, indicating the
following:
“we would like to Inform the that the contract signed on 07 August 2022 is invalid as you failed
to pass the medical examination, and currently, you can leave the club anytime you want”
11. On 31 August 2022, the player concluded an employment contract with the Norwegian
club, FC Jarv, valid as from the date of signature until 31 December 2023.
12. In this respect, the player was entitled to a monthly salary of NOK (Norwegian Krona)
40,000
(note: the total value of the contract would correspond to 40,000*17=NOK 680,000,
equivalent to approx. EUR 62,400).
II. Proceedings before FIFA
1. On 3 November 2022, the player lodged a claim before FIFA for outstanding remuneration
and breach of contract without just cause and requested the payment of the following
amounts:
Outstanding remuneration:
EUR 73,000, plus 18% interest p.a. as from 7 August 2022 and 18% interest p.a. as from 31
August 2022 (EUR 70,000 as of 07 August 2022 and EUR 3,000 as of 31 August 2022) ;
Compensation:
EUR 336,000, plus 18% interest p.a. as from 30 August 2022;
EUR 103,000 as specificity of sport, equivalent to six monthly salaries, as he noted that he
“lived a miserable couple of months during which he was even unable to fund his daily life
expenses.”.
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Legal fees and costs:
EUR 20,000
2. The Claimant considered that a higher interest rate of 18%, compared to the standard 5%,
shall be imposed, “as a proper deterrent to cease and desist committing such significant
breaches again, not only regarding the illegitimate unilateral termination of the Contract, but
also the cumulative aggravating circumstances associated with the Club’s bad faith.”
3. In its reply, the Respondent confirmed that it terminated the contract on the basis of its art.
2 par. 2, and particularly considering that he failed his medical tests.
4. In his replica, the Claimant underlined that the club confirmed that it terminated the
Contract based on the result of the medical test.
5. The Claimant maintained his initial requests.
6. In its duplica, the Respondent insisted that the contract clearly stipulated that it was valid
subject to the passing of a medical test.
7. On a subsidiary basis, the Respondent requested to consider the player’s new contract.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 3 November 2022 and
submitted for decision on 2 March 2023. 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.
2.
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
Swedish & Liberian player and a Moroccan club.
3.
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 (October 2022 edition),
and considering that the present claim was lodged on 3 November 2022, 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
4.
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
5.
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
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties concluded an employment contract valid
as from 7 August 2022 until, in principle, 30 June 2024.
7.
In this context, the Chamber noted that the player lodged a claim against the club, as he
argued that the latter terminated the contract without just cause on 31 August 2022 due
to his failure to pass a medical test.
8.
On the other hand, the Chamber acknowledged the position of the Respondent, which
confirmed said fact. The Respondent further noted that this termination was in line with
art. 2 par. 2 of the contract, which stipulated the following:
« L'employeur et M. PETER WILSON conviennent expressément qu'en cas d' échec du test
médical de M PETER WILSON, les présentes seront considérées comme nuls et non avenus et
les parties seront déliées de tout engagement comme si le présent contrat n’ayant jamais été
conclu entre elles, ce qu'accepte M. PETER WILSON expressément et sans aucune réserve. »
Free translation into English :
"The employer and Mr. PETER WILSON expressly agree that in the event of Mr. PETER WILSON's
fails the medical test, the present contract shall be considered null and void and the parties
shall be released from all obligations as if the present contract had never been concluded
between them, which Mr. WILSON accepts without any reservation.”
9.
In relation to said clause, the Chamber first reminded the parties of the clear and explicit
wording of art. 18 par. 4 of the Regulations, according to which the validity of an
employment contract cannot be made subject to a successful medical examination
and/or the grant of a work permit. Referring also to the obligation of the parties to
maintain contractual stability, the Chamber underlined that a club willing to engage a
specific player should perform any medical examination prior to concluding any
employment contract with the player. Any contractual provision contrary to art. 18 par. 4
of the Regulations shall be considered as invalid.
10. Based on the foregoing, the Chamber rejected the Respondent’s objection to the validity
of the employment contract and determined that the latter is valid and biding for the
parties. Hence, by unilaterally terminating the contract on 31 August 2022 for the nonpassing of a medical examination, the club clearly violated art. 18 par. 4 of the
Regulations, and therefore must be held liable for the breach of contract without just
cause.
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ii. Consequences
11. 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.
12. The Chamber observed that the outstanding remuneration at the time of termination (31
August 2022), can be established that in salary of August 2022 (EUR 3,000), as well as in
the first instalment of the sign-on fee (EUR 70,000). The Chamber noted that there is not
evidence of said amounts (EUR 73,000 in total) having been paid.
13. 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. EUR 73,000, as explained in the previous paragraphs.
14. 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 the due dates until the date of
effective payment.
15. 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.
16. 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.
17. 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
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said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
18. 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.
19. In particular, the Chamber noted that the contract would last from September 2022 until
30 June 2024, i.e. 22 months. Thus, for this period, the player would receive for this period
a basic salary of EUR 3,000*22 = EUR 66,000. The Chamber also observed that the player
was contractually entitled to the following amounts:
•
•
•
•
•
EUR 50,000 on 28 February 2023;
EUR 50,000 on 30 June 2023,
EUR 70,000 on 1 September 2023;
EUR 50,000 on 28 February 2024,
EUR 50,000 on 30 June 2024.
20. Consequently, the Chamber concluded that the sum of the aforementioned amount
corresponds to EUR 336,000. Said amount shall serve as the basis for the determination
of the amount of compensation for breach of contract.
21. 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.
22. Indeed, the player found employment with the Norwegian club, FC Jarv. In accordance
with the pertinent employment contract, the player was entitled to NOK (Norwegian
Krona) 40,000 per month. The total value of said contract would correspond to 40,000*17
= NOK 680,000, which is equivalent to approx. EUR 62,400.
23. Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of EUR 62,400.
24. 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 EUR 273,600 to the player (i.e. EUR 336,000 minus EUR 62,400), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
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25. Lastly, taking into consideration the player’s request as well as the constant practice of
the Football Tribunal in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 31 August 2022 until the date of effective
payment. The Chamber pointed-out that there is no contractual provision allowing to
deviate from this standard rate.
iii. Compliance with monetary decisions
26. 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.
27. 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.
28. 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.
29. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form.
30. 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
31. 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.
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32. 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.
33. 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, Peter Wilson, is partially accepted.
2.
The Respondent, Raja Club Athletic, has to pay to the Claimant, the following amounts:
- EUR 73,000 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 70,000 as from 8 August 2022 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 3,000 as from 1 September 2022 until the date of effective payment;
- EUR 273,600 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 31 August 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).
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
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