Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 1 February 2023
regarding an employment-related dispute concerning
the player A
BY:
Frans DE WEGER (The Netherlands), Chairperson
José Luis ANDRADE (Portugal), member
Roy VERMEER (The Netherlands), member
CLAIMANT:
A, Country A
Represented by
RESPONDENT:
B, Country B
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I. Facts of the case
1. On 1 January 2020, the player A and B concluded and employment contract valid as
from the date of signature until 31 December 2022 for a monthly salary of EUR 600,000
net.
2. On 28 July 2021, the parties concluded a termination agreement with the following
conditions:
“Party A: B (…)
Party B: A (…)
(…) Due to global COVID-19 pandemic, the Parties find It hard to undertake contractual
obligations to each other. In this respect, after amicable negotlations on an equal basis, Party
A and Party B agree to terminate the Employment Contract and therefore reached the
following agreement:
1. Party A and Party B agree that the Employment Contract shall be terminated on 30 June
2021. 2 - “[Party A] shall pay or entrust the third party to pay [Party Br]
remaining salaries in the total amount of EUR 10,000,000 (ten million euros) net, which shall be
paid in the following instalments directly to the bank account specified by [the Player] (that may
be a national or foreign bank account):
EUR 1,000,000.00 (one million Euros) net until 30 August 2021;
EUR 1,000,000.00 (one million Euros) net until 30 September 2021;
EUR 1,000,000.00 (one million Euros) net until 30 October 2021;
EUR 1,000,000.00 (one million Euros) net until 30 November 2021;
EUR 1,000,000.00 (one million Euros) net until 30 December 2021;
EUR 1,000,000.00 (one million Euros) net until 30 January 2022;
EUR 1,000,000.00 (one million Euros) net until 30 February 2022;
EUR 1,000,000.00 (one million Euros) net until 30 March 2022;
EUR 1,000,000.00 (one million Euros) net until 30 April 2022;
EUR 1,000,000.00 (one million Euros) net until 30 May 2022;” (…)
4 - Party A and Party B acknowledge and confirm that, there ls no dispute between the Parties
during the term of the Employment Contract. After the signing & of this Agreement and the
payment of salaries provided In Article 2 above, Party B shall not request Party A to pay any
remuneration, fee, damage, compensation over the performance or termination of the
Employment Contract.
(…)
9. The Parties agree that a faxed or email (.pdf) copy of the present Agreement duly signed by the
Parties shall be considered as valid and binding.”
3. On 7 January 2022, the legal representative of the player sent a default notice, requesting
the payment of EUR 1,000,000 for the instalment due on 30 December 2021, and granted 10
days to remedy the default.
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4. On 3 February 2022, the legal representative of the player sent an email to the club, with the
following contents:
“Could you please provide us with a proof of payment of the sixth instalment of the Settlement
Agreement, which fell due on 30 January 2022?”
5. On 9 December 2022, the Dispute Resolution Chamber (DRC), in relation to a claim from the
player as to the same contract, decided upon the following:
- 5% interest over the amount of EUR 1,000,000 as from 31 August 2021 until the date of effective
payment;
- 5% interest over the amount of EUR 1,000,000 as from 1 October 2021 until the date of effective
payment;
- 5% interest over the amount of EUR 1,000,000 as from 31 October 2021 until the date of effective
payment;
- 5% interest over the amount of EUR 1,000,000 as from 1 December 2021 until the date of effective
payment;
6. On 29 January 2022, B appealed against the decision of the DRC.
7. On 15 November 2022, the Court of Arbitration for Sport dismissed the appeal lodged against
the decision of the DRC of 9 December 2021.
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II. Proceedings before FIFA
1. On 9 February 2022, A lodged a claim before FIFA for outstanding remuneration and
initially requested the payment of EUR 2,000,000, corresponding to the fifth and sixth
instalments of the termination agreement, plus 5% interest p.a. as from the due dates.
2. However, the Claimant clarified, on 21 November 2022, that his claim is for the total
amount of EUR 6,000,000, corresponding to the instalments due on the following
dates:
30 December 2021,
30 January 2022,
28 February 2022,
30 March 2022,
30 April 2022
30 May 2022
3. In its reply, the Respondent referred to the previous matter FPSD-XXXX, and noted that it
was subject of an appeal before the Court of Arbitration for Sport.
4. The Respondent argued that “the Player’s representatives manipulated negotiations with staffs
of the Respondent, who are lack of legal knowledge over this matter, and misled them to a
serious misunderstanding that, to avoid disciplinary sanctions, they should release the Player at
whatever costs.”
5. As to the updated claim of the player, the club confirmed on 14 January 2023 that it did not
proceed to pay any amount following the signature of the termination agreement.
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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 9 February 2022 and
submitted for decision on 1 February 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
Country A player and a Country B 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 9 February 2022, the August 2021
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 Chamber first noted that the matter at stake consists in a claim for outstanding
remuneration arising from a termination agreement concluded between the parties on
28 July 2021, according to which the Respondent committed to pay EUR 10,000,000 to the
player in 10 instalments of EUR 1,000,000 each, between 30 August 2021 until 30 May
2022.
7.
The Chamber also noted that the present matter continuation of a previous case, FPSDxxxx, where the player was already awarded with EUR 4,000,000, corresponding to the
instalments due until 30 November 2021 (i.e. EUR 1,00,000*4, due on 30 August, 30
September, 30 October and 30 November 2021).
8.
In relation to said matter FPSD-xxxx, the Chamber also observed that it was appealed
before CAS, since the club argued that the termination agreement was signed under
duress. However, the Chamber also noted that, on 15 November 2022, the Sole Arbitrator
of CAS confirmed the previous decision of the DRC, particularly noting that “the Club has
failed to establish that the Termination Agreement was entered into by duress”.
9.
Moreover, the Chamber also noted that, in the present case, the club also confirmed that
it did not pay any amount.
ii. Consequences
10. Consequently, the Chamber established that, in accordance with the principle of pacta
sunt servanda, the Respondent shall pay to the player the outstanding amounts of EUR
6,000,000 net arising from the termination agreement, corresponding to the following
instalments:
-
EUR 1,000,000 net until 30 December 2021;
EUR 1,000,000 net until 30 January 2022;
EUR 1,000,000 net until “30 February 2021”
EUR 1,000,000 net until 30 March 2022;
EUR 1,000,000 net until 30 April 2022;
EUR 1,000,000 net until 30 May 2022;” (…)
11. 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.
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iii. Compliance with monetary decisions
12. 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.
13. 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.
14. 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.
15. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form.
16. 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
17. 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.
18. 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.
19. 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, A, is accepted.
2.
The Respondent, B, has to pay to the Claimant, the following amount:
- EUR 6,000,000 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 1,000,000 of as from 31 December 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 1,000,000 of as from 31 January 2022 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 1,000,000 of as from 1 March 2022 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 1,000,000 of as from 31 March 2022 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 1,000,000 of as from 1 May 2022 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 1,000,000 of as from 31 May 2022 until the date of effective payment;
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
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
Fédération Internationale de Football Association
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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