F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 21 February 2020
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 February 2020,
in the following composition:
Clifford Hendel (USA), Deputy Chairman
Tomislav Kasalo (Croatia), member
Pavel Pivovarov (Russia), member
on the claim presented by the player,
Miroslav Markovic, Serbia,
represented by Ms Marketa Vochoska Haindlova
as Claimant
against the club,
Hassania Agadir, Morocco
as Respondent
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 16 July 2018, the Serbian player, Miroslav Markovic (hereinafter: the player or the Claimant)
and the Moroccan club, Hassania Agadir (hereinafter: the club or the Respondent) concluded
an employment contract (hereinafter: the contract) valid as from the date of signature until 30
June 2020.
2. Pursuant to article 7 of the contract, the Claimant was, inter alia, entitled to a monthly
remuneration of Moroccan Dirham (MAD) 85,000 and a signing-on fee of MAD 560,000.
3. Additionally, according to article 7 of the contract, the Claimant was further entitled to receive
a performance bonus that would be “set according to the club’s fee schedule and which is
calculated based on the player’s participation and the results obtained during the official
matches played by the played”. The performance bonuses included the following:
a) A match bonus:
i) Champion of Morocco: MAD 100,000;
- 2nd in the Championship: MAD 50,000;
- 3rd in the Championship: MAD 20,000;
ii) Winner of the Throne Cup: MAD 100,000;
iii) Competitions CAF, UAFA, FIFA: MAD 100,000.
b) An annual bonus of MAD 640,000.
4. According to the Claimant, between 18 December 2018 and 18 July 2019, he sent five default
letters to the Respondent requesting the payment of his outstanding remuneration. In
particular, the player sent those default letters on 18 December 2018, 15 May, 31 May, 15 July
and 18 July 2019.
5. Subsequently, on 1 August 2019, the player put the club in default for the payment of MAD
289,000, granting a 5 days’ deadline to remedy the situation. On 7 August 2019, the same
request was reiterated, granting the club a 10 days’ deadline in order to comply.
6. On 20 August 2019, the player terminated the contract, arguing that such termination was
with just cause pursuant to article 14bis RSTP, as more than two monthly salaries were
outstanding.
7. On 21 August 2019, the Claimant lodged a claim against the Respondent in front of FIFA,
requesting the total amount of MAD 1,924,620, as follows:
a) MAD 294,620 as outstanding remuneration;
b) MAD 1,630,000 as compensation for breach of contract:
- MAD 935,000 corresponding to the monthly salaries for the period August 2019 – June
2020;
- MAD 55,000 corresponding to housing allowances for the period August 2019 – June
2020;
- MAD 640,000 corresponding to the appearance bonus.
8. On 9 September 2019, the Claimant acknowledged receipt of a payment in the amount of MAD
170,000, made on 4 September 2019 by the Respondent. Consequently, the player amended his
claim and requested the following:
a) MAD 124,620 as outstanding remuneration;
b) MAD 1,575,000 as compensation for breach of contract, as follows:
- MAD 935,000 corresponding to the monthly salaries for the period August 2019 – June
2020;
- MAD 640,000 corresponding to the appearance bonus.
9. Despite having been invited to do so, the Respondent did not submit its position regarding the
claim.
II. Considerations of the DRC
1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, it took note that the
present matter was submitted to FIFA on 21 August 2019. Taking into account the wording of
art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
2. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that in
accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status
and Transfer of Players (edition 2020), the DRC is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a
Serbian player and a Moroccan club.
3. In continuation, 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, and considering that the present
claim was lodged on 21 August 2019, the June 2019 edition of said regulations (hereinafter:
Regulations) were applicable to the matter at hand as to the substance.
4. The competence of the DRC and the applicable regulations having been established, the DRC
entered into the substance of the matter. In this respect, it started by acknowledging all the
above-mentioned facts, the arguments and the documentation submitted by the Claimant and
the Respondent. 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.
5. First of all, the Chamber noted that the parties entered into an employment contract valid as
from 16 July 2018 until 30 June 2020, which entitled the Claimant inter alia to a monthly salary
of MAD 85,000 (cf. points I.2 and I.3 above).
6. In continuation, the members of the Chamber noted that the Claimant lodged a claim against
the Respondent maintaining that he had terminated the employment contract with just cause
on 20 August 2019, after previously having put the club in default, since the Respondent
allegedly failed to pay the Claimant’s remuneration. In this respect, the Claimant sustained that
“overdue payables were partially provided to the Player”. Consequently, the Claimant asks to
be awarded his outstanding dues as well as the payment of compensation for breach of the
employment contract.
7. The Respondent, for its part, failed to present its response to the claim of the Claimant, in spite
of having been invited to do so. Consequently, the Chamber deemed that the Respondent had
renounced to its right of defence and, thus, had accepted the allegations of the Claimant.
8. As a consequence of the aforementioned consideration, the members of the Chamber
concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be
taken upon the basis of the documents already on file, in other words, upon the statements
and documents presented by the Claimant.
9. First and foremost, the DRC highlighted that the central issue in the matter at stake would be,
thus, to determine as to whether the Claimant had just cause to terminate the contract on 20
August 2019.
10. In this respect, the Chamber wished to emphasize that, according to the Claimant, at the time
of the termination of the contract on 20 August 2019, two monthly salaries were outstanding
to the Claimant, i.e. the monthly salaries for June and July 2019. In this respect, the Chamber
duly noted that the Claimant sent to the Respondent several default letters requesting the
payment of his outstanding remuneration.
11. On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant had just cause to
terminate the employment contract on 20 August 2019 and that the Respondent is to be held
liable for the early termination of the employment contract with just cause by the Claimant.
12. 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.
13. Notwithstanding the above, the Chamber took note that the Claimant confirmed having
received a payment from the Respondent in the amount of MAD 170,000, corresponding to
the monthly salaries for June and July 2019.
14. In view of the above, by paying the amount of MAD 170,000 on 4 September 2019, the
members of the Chamber considered that the club paid all the amounts that were due at the
time of the termination of the contract. As a consequence, the DRC determined that no
amounts were outstanding to the player.
15. In continuation, having established that the Respondent is to be held liable for the termination
of the contract with just cause by the Claimant, the Chamber decided that, in accordance with
art. 17 par. 1 of the Regulations, the Respondent is liable to pay compensation to the Claimant.
16. In this respect, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of 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 Claimant under the existing contract and/or the
new contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
17. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent employment contract contains 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.
18. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant 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. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body.
19. The members of the Chamber then turned their attention to the remuneration and other
benefits due to the Claimant under the existing contract and/or the new contract, which
criterion was considered by the Chamber to be essential. The members of the Chamber deemed
it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the
Chamber to take into account both the existing contract and the new contract in the calculation
of the amount of compensation.
20. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the player under the terms of the employment contract as from its date of
termination with just cause by the Claimant, i.e. 20 August 2019 until 30 June 2020, and concluded that the Claimant would have received in total MAD 935,000 as remuneration had
the contract been executed until its expiry date. Moreover, the DRC took note that the
“performance bonus” of MAD 640,000 is actually a fixed payment. Consequently, the Chamber
concluded that the amount of MAD 1,575,000 serves as the basis for the final determination of
the amount of compensation for breach of contract in the case at hand.
21. In continuation, the Chamber verified as to whether the Claimant 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,
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. In this regard, the members of the Chamber noted that the Claimant had not signed any new
employment contract within the period of time between the termination of the contract and
its original date of expiry and, thus, had not been able to mitigate damages.
23. Consequently, on account of all of the above-mentioned considerations, the Chamber decided
that the Respondent must pay the amount of MAD 1,575,000 to the Claimant as compensation
for breach of contract.
24. The members of the Chamber concluded its deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
25. Furthermore, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which
stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant amounts of
outstanding remuneration and/or compensation in due time.
26. In this regard, the DRC pointed out that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players, either
nationally or internationally, up until the due amounts are paid and for the maximum duration
of three entire and consecutive registration periods.
27. Therefore, bearing in mind the above, the Chamber decided that, in the event that the
Respondent does not pay the amount due to the Claimant within 45 days as from the moment
in which the Claimant, following the notification of the present decision, communicates the
relevant bank details to the Respondent, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become effective on the Respondent in accordance with art. 24bis
par. 2 and 4 of the Regulations.
28. Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and prior to
its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of
the Regulations.
*****
III. Decision of the DRC
1. The claim of the Claimant, Miroslav Markovic, is partially accepted.
2. The Respondent, Hassania Agadir, has to pay to the Claimant compensation for breach of
contract in the amount of Moroccan Dirham (MAD) 1,575,000.
3. Any further claim lodged by the Claimant is rejected.
4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to
the e-mail address as indicated on the cover letter of the present decision, of the relevant
bank account to which the Respondent must pay the amount mentioned under point III.2.
above.
5. The Respondent shall provide evidence of payment of the due amount in accordance with
point III.2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be,
into one of the official FIFA languages (English, French, German, Spanish).
6. In the event that the amount due in accordance with point III.2. above is not paid by the
Respondent within 45 days as from the notification by the Claimant of the relevant bank
details to the Respondent, the Respondent shall be banned from registering any new
players, either nationally or internationally, up until the due amount is paid and for the
maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
7. The ban mentioned in point III.6. above will be lifted immediately and prior to its complete
serving, once the due amount is paid.
8. In the event that the aforementioned amount are still not paid by the end of the ban of
three entire and consecutive registration periods, the present matter shall be submitted,
upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
*****
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Where such decisions contain confidential information, 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
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Committee and the Dispute Resolution Chamber).
Note relating to the motivated decision (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
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within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS. Within another 10 days following the
expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
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Tel: +41 21 613 50 00
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For the Dispute Resolution Chamber:
______________________________
Emilio García Silvero
Chief Legal & Compliance Officer