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 27 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 27 February 2020,

in the following composition:

Clifford J. Hendel (USA and France), Deputy Chairman

Roy Vermeer (The Netherlands), member

Stefano La Porta (Italy), member

on the claim presented by the player,

Jebor William, Liberia,

represented by Mr Alfredo Martínez Nora

as Claimant

against the club,

Wydad Casablanca, Morocco

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 3 July 2018, the Liberian player, Jebor William, (hereinafter: the player or Claimant), and the Moroccan club, Wydad Casablanca, (hereinafter: The club or Respondent) concluded an employment contract valid as from 1 August 2018 until 30 June 2021 (hereinafter: the contract) pursuant to which he was entitled to the following remuneration:

I. USD 400,000 for the season 2018/2019 according to the following schedule:

 USD 100,000 upon receipt of the ITC;

 USD 100,000 on 10 August 2018;

 USD 20,000 on 30 April 2019;

 USD 15,000 per month.

II. USD 450,000 for the season 2019/2020;

III. USD 500,000 for the season 2020/2021.

2. Moreover, according to the employment contract, the Claimant was entitled to “an apartment”, “a car” and, inter alia, the following bonuses:

 USD 20,000, if the Respondent wins the CAF Champions League;

 USD 20,000, if the Respondent wins “la BOTOLA”;

 USD 10,000, if the Respondent wins the Arab Cup.

3. Furthermore, in accordance with clause 12 of the contract, should a dispute between the parties arise, the matter is submitted by one or the other party to the Fédération Royale Marocaine de Football NDRC. The decisions of the Fédération Royale Marocaine de Football may be appealed at CAS (Lausanne).

4. Pursuant to article 6 of the contract, “The amounts of EUR 200 (in words: two hundred/00) shall be recognised for sixth months of renting a flat.”

5. By e-mails dated 23 January, 15 February and 22 February 2019, the Claimant put the Respondent in default of, respectively:

I. 4 monthly salaries, asking to be paid within 7 days;

II. 6 monthly salaries for a total amount of USD 90,000 as well as USD 50,000 as “prime” and 4 months of accommodation costs in the amount of USD 4,800, asking to be paid within 7 days;

III. The same amounts as the previous letter.

6. On 27 May 2019, the Claimant unilaterally terminated the contract.

7. According to the information available in the Transfer Matching System (hereinafter: TMS), on 16 August 2019, the Claimant signed an employment contract with the UAE club Al Fujairah valid as from date of signature until 31 May 2020, according to which he was entitled to a sign-on fee of USD 50,000 and a monthly salary of USD 40,000.

8. The Claimant explained that, by 3 June 2019, he had received from the Respondent the total amount of Moroccan Dirham (MAD) 1,745,540, which he claimed corresponds to USD 180,278, whereas he should have received USD 400,000.

9. Moreover, with regards to the accommodation costs, the Claimant pointed out that he had received from the Respondent MAD 84,376.37, which he claimed corresponds to USD 8,714.

10. The Claimant recalled that, notwithstanding his default letters, the Respondent did not comply with its financial obligations.

11. Consequently, the Claimant maintained he had just cause to terminate the employment contract on 27 May 2019.

12. Furthermore, the Claimant explained that, with regards to the season 2018/2019, USD 50,000 should be added to the outstanding amounts due to the fact that the Respondent had allegedly won:

 The CAF Champions League, thus entitling him to a bonus of USD 20,000;

 The “liga BOTOLA”, thus entailing him to a bonus of USD 20,000;

 The “Champions árabe”, thus entitling him to a bonus of USD 10,000.

13. However, the Claimant asked compensation in the amount of USD 1,178,436, corresponding to USD 228,436 regarding the season 2018/2019 plus the residual value of the contract (i.e. USD 950,000 in total for the remaining two seasons).

14. In its reply to the claim of the Claimant, the Respondent first declared that the Claimant’s claim was not “acceptable” as it was written in Portuguese, a language that is not one of the four official FIFA languages.

15. Moreover, the Respondent made reference to clause 12 of the contract, and pointed that that the “Fédération Royale Marocaine de Football NDRC” (hereinafter: FRMF NDRC) is competent to adjudicate in the present matter.

16. In addition, the Respondent stated that a dispute between the parties had already been decided upon by the FRMF NDRC on 18 September 2019, regarding the “sporting aspects” of the contractual dispute, a decision that had been appealed by the Respondent. As such, the Respondent argued that the Claimant’s claim should be deemed inadmissible.

II. Considerations of the DRC

1. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or DRC) analysed whether he was competent to deal with the matter at stake. In this respect, the DRC took note that the present matter was submitted to FIFA on 3 June 2019 and decided on 27 February 2020. 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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC is, in principle, competent to deal with the matter at stake, which concerns an alleged employment–related dispute with an international dimension between a Liberian player and an Moroccan club.

3. At this point, the DRC noted that the Respondent objected the admissibility of the present claim, alleging that according to clause 12 of the contract the FRMF NDRC is competent to adjudicate in the present matter and argued that a dispute between the parties had already been decided upon by the FRMF NDRC on 18 September 2019, regarding the sporting aspects of the contractual dispute, a decision that had been appealed by the Respondent.

4. The Chamber first focused its attention on the Respondent’s argument that the present claim would have been affected by res judicata and therefore would no longer be admissible, as the Moroccan NDRC had allegedly already taken a decision on a similar claim involving the same parties and the same object. In this respect, the Chamber noted that no substantial evidence of such a decision reached by the Moroccan NDRC had been reached and therefore the Respondent’s objection related to res judicata could not be sustained.

5. Subsequently, the Chamber then turned its attention to clause 12 of the contract, according to which if a dispute between the parties arise, the matter is submitted by one or the other party to the Fédération Royale Marocaine de Football NDRC. The decisions of the Fédération Royale Marocaine de Football may be appealed at CAS. Hence, the DRC outlined that said clause explicitly and exclusively refers to a national dispute resolution chamber, i.e. the “Fédération Royale Marocaine de Football NDRC”.

6. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the June 2019 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

7. In view of the above, the Chamber deemed that the Respondent had failed to prove that the “Fédération Royale Marocaine de Football NDRC” is indeed an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs.

8. On account of the above, and referring to the principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

9. Having established that it is competent to entertain the present dispute, the DRC analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 3 June 2019, the June 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

10. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC 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.

11. In this respect, the DRC acknowledged that, on 3 July 2018, the Claimant and the Respondent concluded an employment contract valid as from 1 August 2018 until 30 June 2021, pursuant to which the Respondent undertook to pay to the Claimant a total amount of USD 1,350,000 plus bonuses.

12. Moreover, the DRC took note that on 27 May 2019, the Claimant unilaterally terminated the contract arguing that the Respondent did not comply with its financial obligations, in spite of his default notices.

13. Having recalled the above, the DRC observed that, the Claimant, in his claim, requested the amount of USD 1,178,436 as well as the bonus deriving from the Respondent’s alleged sporting results in accordance with the employment contract.

14. The DRC noted that the Respondent only contested FIFA’s competence to deal with the present matter, but did not submit any comments as to the substance of the dispute.

15. Moreover, with due consideration to the above, the DRC acknowledged that the Claimant stated not having received the abovementioned amounts.

16. In view of the above, the Chamber noted that the Respondent did not contest the outstanding amount of remuneration claimed by the Claimant and established that the Respondent has failed to comply with its contractual obligations.

17. Consequently, the Chamber concluded that the Claimant had a just cause to terminate the employment contract on 27 May 2019, as on that date roughly 55% of the total amount the player was entitled to had remained outstanding. Furthermore, the DRC noted that the player had put the club in default on 23 January, 15 February and 22 February 2019 and that he terminated the contract on 27 May 2019, de facto more than 15 days after the default notice was given.

Thus, the Chamber concluded that the just cause of the player to terminate the contract was given as per art. 14bis of the Regulations.

18. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the DRC focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract.

19. But before entering the calculation of the amount of compensation due to the Claimant by the Respondent, the DRC first established the amount of outstanding remuneration due to the player by the time of termination. 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 amount of USD 219,722 in connection with the remuneration due to the Claimant in accordance with the employment contract until its early termination.

20. In continuation, 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 DRC 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.

21. In application of the relevant provision, the DRC 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 DRC established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

22. As a consequence, the DRC 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.

23. The DRC then turned its 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 it to be essential. The Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing contract and the new contract in the calculation of the amount of compensation.

24. Bearing in mind the foregoing, the DRC proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 27 May 2019, until the end of the contract, and concluded that the Claimant would have received in total USD 950,000 as remuneration had the contract been executed until its expiry date. Consequently, the DRC concluded that the amount of USD 950,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

25. In continuation, the DRC 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.

26. The Chamber recalled that the Claimant signed an employment contract with the the UAE club, Al Fujairah, valid as from date of signature until 31 May 2020, according to which he was entitled to a sign-on fee of USD 50,000 and a monthly salary of USD 40,000. This employment contract enabled the Claimant to mitigate his damages by USD 440,000 during said period of time. Therefore, the Claimant shall receive USD 510,000 as a mitigated compensation.

27. Furthermore, the player would be entitled to receive additional compensation in light of art. 17 par. 1 of the Regulations. The additional compensation amounts USD 100,000, i.e. three monthly salaries, considering a total yearly remuneration of USD 400,000.

28. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant’s general obligation to mitigate his damage, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of USD 610,000 as total compensation for breach of contract in the case at hand.

29. The DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

30. Furthermore, taking into account the consideration under number II./9. above, the DRC 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.

31. 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.

32. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts 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.

33. Finally, the Chamber 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. 24bis par. 3 of the Regulations.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Mr Jebor William, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Wydad Casablanca, has to pay to the Claimant outstanding remuneration in the amount of USD 219,722.

4. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of USD 610,000.

5. 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 amounts mentioned under points 2. and 3. above.

6. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2. and 3. 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).

7. In the event that the amounts due in accordance with points 2. and 3. above are 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 amounts are 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).

8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sums 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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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the Dispute Resolution Chamber. 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 redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly 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 (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer