F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 11 March 2021

Decision of the

Dispute Resolution Chamber

passed on 11 March 2021,

regarding an employment-related dispute concerning the player Martín Bengoa Díez

COMPOSITION:

Clifford Hendel (USA / France), Deputy Chairman

Muzammil Bin Mohamed (Singapore), member

Tomislav Kasalo (Croatia), member

CLAIMANT:

Martín Bengoa Díez, Spain

Represented by Asociación de Futbolistas Españoles

RESPONDENT:

Moghreb Athletic Tetouan, Morocco

Represented by Mr Belkahia Lamjed

I. FACTS OF THE CASE

1. On 1 July 2019, the Spanish player, Martín Bengoa Díez, and the Moroccan club, Moghreb Athletic Tetouan, concluded an employment agreement (hereinafter: the contract) valid from 1 July 2019 until 30 June 2021.

2. In accordance with clause 4 of the contract, the club undertook to pay to the player, inter alia, the following amounts:

3. By means of his letter dated 30 October 2020, the Claimant put the Respondent in default of payment in the amount of MAD 457,500, granting the Respondent a 10 days´ deadline to remedy the default; however to no avail

4. Thereafter, by means of his letter dated 14 December 2020, the player put the club in default of payment in the amount of MAD 738,500, corresponding to 3 monthly salaries, 3 sign-on fee instalments and several bonuses, thereby granting the Respondent a 15 days deadline to remedy the default (note: supporting documentation on file).

5. Thereto, the club replied on 15 December 2020, whereby the Respondent urged the player to contact the club, which had decided that, as from the said date, the player would follow special trainings with the physical coach of the club.

For the season 2019/2020:

- A net monthly salary of MAD 30,000 (approx.: CHF 28,000);

- A sign-on fee of MAD 827,500 (approx.: CHF 765,000) to be paid in four 4 instalments, as follows:

- MAD 200,000 on 1 September 2019;

- MAD 200,000 on 31 December 2019;

- MAD 200,000 on 30 March 2020;

- MAD 227,500 on 30 June 2020.

- A bonus of MAD 75,000 should the player score 10 goals in official matches;

- A bonus of MAD 50,000 should the player score 5 additional goals in official matches;

- An accommodation allowance in the amount of MAD 4,000 per month.

For the season 2020/2021:

- A net monthly salary of MAD 30,000 (approx.: CHF 28,000);

- A performance bonus of MAD 936,000 (approx.: CHF 866,000) to be paid in four 4 instalments, as follows:

- MAD 200,000 on 1 September 2020;

- MAD 250,000 on 31 December 2020;

- MAD 236,000 on 30 March 2021;

- MAD 250,000 on 30 June 2021.

- A bonus of MAD 100,000 should the player score 10 goals in official matches;

- A bonus of MAD 50,000 should the player score 5 additional goals in official matches;

- An accommodation allowance in the amount of MAD 4,000 per month.

6. Moreover, by means of a letter dated 17 December 2020, the club convoked the player to a disciplinary hearing, scheduled for 25 December 2020 in connection with an alleged incident that would have taken place on 10 December 2020.

7. The player replied to the aforementioned letter with his correspondence dated 18 December 2020, sent to both, the club and the Moroccan FA, whereby the player rejected the instructions of the club regarding training alone, since he is “fit and capable to play with the rest of the team”. In addition, the player highlighted that the outstanding moneys had yet not been paid by the club and that he had been informed by “Club´s representatives” that his license was not registered. In this respect, the player requested the club to provide him with a confirmation regarding his registration with the club and that he is able to compete in official matches (note: supporting document on file).

8. On 28 December 2020, the club informed the player that a fine of MAD 350,000 (approx.: CHF 324,000) had been imposed on him; amount which would be deducted from his salaries.

9. On 4 January 2021, the player unilaterally terminated the contract in, on the basis of art. 14bis of the RSTP writing.

10. On 20 January 2021, the player lodged a claim against the club before FIFA, requesting to be awarded outstanding remuneration and compensation in the total amount of MAD 1,740,992.87 (approx.: CHF 1,611,000), plus 5% interest p.a. on the outstanding amounts, as from the date on which the contract was terminated until the date of effective payment, broken down by the player as follows:

Outstanding remuneration: MAD 1,017,896.10

- MAD 200,000 corresponding to the sign-on fee instalment due on 30 March 2020;

- MAD 227,500 corresponding to the sign-on fee instalment due on 30 June 2020;

- MAD 200,000 corresponding to the performance bonus due on 1 September 2020;

- MAD 250,000 corresponding to the performance bonus due on 31 December 2020;

- MAD 34,000 corresponding to the salary + accommodation allowance of September 2020;

- MAD 34,000 corresponding to the salary + accommodation allowance of October 2020;

- MAD 34,000 corresponding to the salary + accommodation allowance of November 2020;

- MAD 34,000 corresponding to the salary + accommodation allowance of December 2020;

- MAD 4,387.10 corresponding to the salary + accommodation allowance of the first 4 days of January 2021, pro-rata calculated by the Claimant;

- MAD 9,000 corresponding to 4 different match bonuses (note: supporting documentation provided by the Claimant):

“ Club Difaa El Jadida, date 21/12/2019 4.500,00 MAD.

lttihad Riadi Tanger, date 11/01/2020 1.500,00 MAD.

Olympique Club of Khourigba, date 01/02/2020 1.500,00 MAD.

Renaissance de Berkane, date 06/02/2020 1.500,00 MAD“.

Compensation for breach of contract: MAD 685,612.90

- MAD 29,612.90 corresponding to the salary + accommodation allowance of the remaining 27 days of January 2021 (pro rata calculated);

- MAD 34,000 corresponding to the salary + accommodation allowance of February 2021;

- MAD 34,000 corresponding to the salary + accommodation allowance of March 2021;

- MAD 34,000 corresponding to the salary + accommodation allowance of April 2021;

- MAD 34,000 corresponding to the salary + accommodation allowance of May 2021;

- MAD 34,000 corresponding to the salary + accommodation allowance of June 2021;

- MAD 236,000 corresponding to the performance bonus due on 30 March 2021;

- MAD 250,000 corresponding to the performance bonus due on 30 June 2021;

Moral damages: MAD 34,000

- MAD 34,000 corresponding to “moral damages” requested by the Claimant (note: no contractual basis regarding this request)

11. In his claim, the player maintained that, despite having complied with his contractual obligations, the club failed to comply with its financial obligations towards him, which put the player in a situation of vulnerability. 14. Moreover, the player argued that the club did not select him to play in any match of the 2020/2021 season, which led the player to believe that the club actually did not register him for the said season. In this respect, the player stressed that the club orally threatened him with not registering him for the said season (note: no evidence provided in this regard). Consequently, the player requested a confirmation from both, the club and the Moroccan FA, as to his registration with the club, but neither of them replied to his confirmation request.

12. What is more, the player maintained that, as from 14 December 2020, he was forced to train alone, with the only company of a physical coach; order to which the player formally opposed.

13. As to the disciplinary proceedings opened against the player, the latter held that it was a lame attempt of the club to off-set its debts towards him by convoking a hearing to be held on 25 December 2020, upon which the player was fined with a disproportionate amount, i.e. MAD 350,000, based on non-existing grounds.

14. Despite having been invited to do so, the Respondent failed to reply to the claim.

15. Upon request, on 10 March 2021, the player informed the FIFA administration that he has not concluded any new contract following the termination of the contract with the Respondent.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

1. First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analyzed 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 20 January 2021 and submitted for decision on 11 March 2021. Taking into account the wording of art. 21 of the January 2021 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 and 2 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 competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension.

3. In continuation, the Chamber analysed which regulations 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 2 of the Regulations on the Status and Transfer of Players (February 2021 edition), and considering that the claim was lodged on 20 January 2021, the January 2021 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

4. The DRC recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

5. In this respect, the DRC also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

6. 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 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.

i. Main legal discussion and considerations

7. Having said that, the DRC firstly noted that, despite having been invited to do so, the Respondent failed to reply to the claim. Consequently –continued the DRC– the allegations of the Claimant, if sufficiently proved with the necessary documentary evidence, will be considered as uncontested facts.

8. Entering into the analysis of the facts of the case, the Chamber noted that it remained uncontested that the player put the club in default of payment on several occasions –i.e., on 30 October and 14 December 2020, the latter of which in the amount of MAD 738,500, corresponding to 3 monthly salaries, 3 sign-on fee instalments and several bonuses– thereby granting the club a 10 days and a 15 days deadline, respectively, to comply with its financial obligations towards the player; letters to which the club only replied ordering the player to train alone with a physical coach and convoking the latter to a disciplinary hearing –held on a date on which the player was on holidays, i.e. 25 December 2020– upon which the player was fined with an amount of MAD 350,000 (approx.: CHF 324,000).

9. In this context, the DRC duly noted the allegations of the player, in accordance with which the latter held that the club failed to register him for the season 2020/2021 and that, on 4 January 2021, the player unilaterally terminated the contract ex. art. 14bis of the Regulations.

10. The above being explained, the Chamber firstly referred to the disciplinary sanction of MAD 350,000 imposed on the player by the club and determined that the said fine shall be disregarded, insofar: 1.) the club failed to reply to the claim and provide a copy of the disciplinary regulations of the club upon which the latter would have based the imposition of the said fine; 2.) clubs are not allowed to directly offset a player´s contractually agreed entitlement with fines unilaterally imposed by the club; 3.) even if rightfully imposed, the said amount would represent more than 10 monthly salaries of the player, which is clearly disproportionate.

11. On the other hand, –continued the Chamber–, as to the allegations of the player regarding his non-registration during the season 2020/2021, the said event was not proven by the player and, thus, needs to be disregarded.

12. In this context, having carefully analysed all the documentation on file, the DRC determined that, since at the date of termination more than 3 monthly salaries were outstanding, the player did terminate the contract with just cause on 4 January 2021, in accordance with art. 14bis of the Regulations.

ii. Consequences

13. In view of the above, the DRC deemed it appropriate to firstly assess whether any outstanding remuneration was still due by the club to the player at the date of termination of the contract with just cause by the player.

14. In this respect, the DRC underlined that, insofar the club failed to reply to the claim of the player, the allegations of the latter regarding the moneys due to him at the date of termination remained uncontested and, by virtue of application of the general principle of law, pacta sunt servanda, the Respondent shall pay to the Claimant the amount of MAD 1,017,896.10 net, corresponding to the breakdown displayed in point I.10 above.

15. As to the entitlement of the Claimant to receive default interest on the aforementioned amounts, the DRC decided to grant the Claimant –in accordance with the longstanding jurisprudence of the DRC in combination with the specific request of the Claimant–, default interest of 5% p.a. as from 4 January 2021, i.e. the date on which the contract was terminated with just cause by the Claimant, until the date of effective payment.

16. In continuation, the DRC decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding remuneration on the basis of the relevant employment contract.

17. In this context, the Chamber outlined that, in accordance with said provision, 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.

18. In application of the relevant provision, the DRC held that it, first of all, had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a 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.

19. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred.

20. In this respect, the Chamber pointed out that, despite the contract´s premature termination on 4 January 2021, if organically continued, the contract would have run until 30 June 2021. Consequently, taking into account the financial terms of the contract, the DRC concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounts to MAD 685,612.90 net (cf. point I.10 above).

21. In continuation, the DRC remarked that following the early termination of the employment contract at the basis of the present dispute, the Claimant was not able to find a new employment. As a result, no further amounts will be deducted from the compensation the Claimant would be entitled to.

22. In view of all of the above, the DRC decided that the Respondent must pay the amount of MAD 685,612.90 net to the Claimant as compensation for breach of contract, which is considered by the Chamber to be a reasonable and justified amount of compensation.

23. In addition, as to the entitlement of the Claimant to receive default interest on the aforementioned amount, the DRC noted that the Claimant did not request to be granted any default interest in connection with the compensation requested and, hence, no default interest should be granted regarding the said amount.

24. In connection with the Claimant´s request regarding moral damages in the amount of MAD 34,000, the DRC stressed that requests regarding moral damages cannot be granted in accordance with the usual practice of the DRC and, thus, the Claimant´s request in this respect cannot be upheld.

iii. Compliance with monetary decisions

25. Furthermore, taking into account the consideration under number II.3 above, the DRC referred to para. 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 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.

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 amounts, in accordance with art. 24bis par. 3 of the Regulations.

29. The DRC concluded its deliberations in the present matter stipulating that the Claimant’s claim is partially accepted and that any further claim lodged by the Claimant is rejected.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Martín Bengoa Díez, is partially accepted.

2. The Respondent, Moghreb Athletic Tetouan, has to pay to the Claimant outstanding remuneration in the amount of MAD 1,017,896.10 net, plus 5% interest p.a. as from 4 January 2021 until the date of effective payment.

3. The Respondent, Moghreb Athletic Tetouan, has to pay to the Claimant compensation for breach of contract in the amount of MAD 685,612.90 net.

4. Any further claims of the Claimant are rejected.

5. Full payment (including all applicable interest) shall be made to the bank account set out in the enclosed Bank Account Registration Form.

6. Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment (including all applicable interest) is not paid 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 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 paid by the end of the of the three entire and consecutive registration periods.

7. The consequences shall only be enforced at the request of the Claimant in accordance with article 24bis paragraphs 7 and 8, and article 24ter of the Regulations on the Status and Transfer of Players.

8. This decision is rendered without costs.

For the DRC:

Emilio García Silvero

Chief Legal & Compliance Officer

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) 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 20 of the Procedural Rules).

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