Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 15 March 2023
regarding an employment-related dispute concerning
the player A
BY:
Mr Jon Newman (USA), Single Judge of the DRC
CLAIMANT:
A, Country A
Represented by
RESPONDENT:
B, Country B
pg. 2
I. Facts of the case
1.
On 6 July 2021, the Country A player, A (hereinafter: Claimant or player) and the Country B
club, B (hereinafter: club or Respondent) concluded an employment contract (hereinafter:
contract) valid as from 6 July 2021 until 20 June 2022. The player was on loan from Club C.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of EUR 14,850, payable on the 10th day of the following month.
3.
The contract establishes the following bonuses:
- §5 Art. 2: “the Player shall be entitled to receive an individual match bonus in the
amount of EUR 500 gross for each point scored by the first senior team of the Club in
the professional league of xxx under the condition that the Player participates in such
match for at least 90 minutes.”
- §5 Art. 4.: “the Player shall be entitled to an individual goal or assist bonus in the
amount of EUR 500 gross for each goal or assist to a goal scored by him for the first
senior team of the Club in the professional league of xxx.”
- §5 Art. 7.a.: A loyalty bonus in the amount of EUR 3,700 if the “he remains a player
of the club on 31 December 2021”.
4.
§5 Art. 8 of the Contract defines: “That for the payment of the remuneration specified in § 4 or
§ 5 herein, the exchange rate to be applied is the average xxx (National Bank of Country B) rate
of EUR for the last day of the month for which the remuneration is due, i.e. the remuneration
shall be paid in Country B currency.”
5.
Art. 13 par. 3 of the contract reads as follows: “Any dispute related to or arising from the
execution of this contract shall be exclusively submitted to the Football Court of Arbitration of
Football Association Country B (Country B FA)”.
6.
On 31 January 2022, the parties signed a document named “agreement on restructuring
debt”, which defined a debt of the club in the amount of Country B Currency 46,614.43 on
31 December 2021.
7.
According to the “agreement on restructuring debt”, the club undertook to pay to the
Claimant:
- Country B Currency 15,000 on 28 February 2022;
- Country B Currency 31,614.43 on 31 May 2022.
8.
On 20 June 2022, the Respondent imposed a fine of EUR 5,000 on the player since he
missed one training.
9.
On 28 July 2022, the Claimant put the Respondent in default and requested payment of
Country B Currency 363,564.52 setting a 10 days’ time limit in order to remedy the default.
pg. 3
In this letter, the player protested against the fine imposed and apparently appealed the
decision to the Disciplinary Committee of the Country B FA.
10. The Claimant acknowledged receipt of the following payments:
- payment of 12 August 2021 amounting Country B Currency 67,358.33 in relation to VAT
invoice no. 01/07/2021 (2 days after due date);
- payment of 13 September 2021 amounting Country B Currency 82,877.88 in relation to
VAT invoice no. 01/08/2021 (3 days after due date);
- payment of 18 October 2021 amounting Country B Currency 84,472.24 in relation to VAT
invoice no. 01/09/2021 (8 days after due date; agreed sports equipment reduction);
- payment of 10 November 2021 amounting Country B Currency 84,401.22 in relation to
VAT invoice no. 01/10/2021;
- payment of 22 December 2021 amounting Country B Currency 85,544.64 in relation to
VAT invoice no. 01/11/2021 (12 days after due date);
- payment of 14 January 2022 amounting Country B Currency 83,690.34 in relation to VAT
invoice no. 01/12/2021 (4 days after due date; agreed sports equipment reduction);
- payment of 8 March 2022 amounting Country B Currency 39,438.44 in total while the
amount of Country B Currency 18,450.00 was paid in relation to VAT invoice no.
02/12/2021 (37 days after due date; the due date of the remaining part amounting
Country B Currency 38,885.37 including VAT has been agreed on 31 May 2022) and the
amount of Country B Currency 20,988.44 was paid in relation to VAT invoice no.
03/12/2021 (60 days after due date);
- payment of 18 February 2022 amounting Country B Currency 68,283.27 in relation to
VAT invoice no. 01/01/2022 (8 days after due date);
- payment of 14 March 2022 amounting Country B Currency 15,705.15 in relation to VAT
invoice no. 01/01/2022 (32 days after due date);
- payment of 17 March 2022 amounting Country B Currency 20,000.00 in relation to VAT
invoice no. 01/02/2022 (7 days after due date);
- payment of 14 April 2022 amounting Country B Currency 65,681.64 in relation to VAT
invoice no. 01/02/2022 (35 days after due date);
- payment of 25 April 2022 amounting Country B Currency 40,000.00 in relation to VAT
invoice no. 01/03/2022 (15 days after due date).
pg. 4
II. Proceedings before FIFA
11. On 9 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
12. In his claim, the Claimant requested payment of the following monies, along with 5%
interest p.a. as of the due dates:
- Country B currency 38,885.75 as outstanding part from Country B Currency
57,335.75 (EUR 12,500) as bonuses related to matches until December 2021;
- Country B currency 44,980.24 as outstanding part from Country B Currency
84,622.24 (EUR 14,850) as salary for March 2022;
- Country B currency 85,084.35 as outstanding salary for April 2022 (EUR 14,850);
- Country B currency 83,575.62 as outstanding salary for May 2022 (EUR 14,850);
- Country B currency 85,493.52 as outstanding salary for June 2022 (EUR 14,850);
- Country B currency 25,545.30 (EUR 5,500) as bonuses related to matches until
June 2022.
13. Furthermore, the Claimant requested interest for late payments as follows:
a) from the amount of Country B Currency 67,358.33 including VAT for the period from 11
August 2021 until 12 August 2021;
b) from the amount of Country B Currency 82,877.88 including VAT for the period from 11
September 2021 until 13 September 2021;
c) from the amount of Country B Currency 84,472.24 including VAT for the period from 11
October 2021 until 18 October 2021;
d) from the amount of Country B Currency 85,544.64 including VAT for the period from 11
December 2021 until 22 December 2021;
e) from the amount of Country B Currency 83,690.34 including VAT for the period from 11
January 2022 until 14 January 2022;
f) from the amount of Country B Currency 18,450.00 including VAT for the period from 31
January 2022 until 8 March 2022;
g) from the amount of Country B Currency 20,988.44 including VAT for the period from 8
January 2022 until 8 March 2022;
h) from the amount of Country B Currency 68,283.27 including VAT for the period from 11
February 2022 until 18 February 2022;
i) from the amount of Country B Currency 15,705.15 including VAT for the period from 11
February 2022 until 14 March 2022;
j) from the amount of Country B Currency 20,000.00 including VAT for the period from 11
March 2022 until 17 March 2022;
k) from the amount of Country B Currency 65,681.64 including VAT for the period from 11
March 2022 until 14 April 2022;
pg. 5
l) from the amount of Country B Currency 40,000.00 including VAT for the period from 11
April 2022 until 25 April 2022.
14. The player argued that the claimed amounts remained outstanding even after his default
notice.
15. Further, the player held the fine imposed shall not be taken into account as it is
disproportionate, the club failed to follow due process and the player did not have the right
to be heard.
b. Position of the Respondent
16. In its reply, the Respondent contested FIFA’s competence to decide the matter at hand on
the basis of art. 13 par. 3 of the contract, which grants exclusive jurisdiction to the Football
court of Arbitration of the Country B FA.
17. As to the substance, the club argued that the Respondent was relegated during the relevant
season, which had also to do with the decreasing sporting performance of the Claimant.
18. In this framework, the club held that it would be “unfair” for the Respondent to have to pay
bonuses since the sporting performance led to relegation.
19. The Respondent also pointed out that the claim for the salary of June 2022 was in “bad
faith” as the parties were negotiation an earlier return to Club C, his club in Country A,
where he was on loan from.
20. The club held that the appeal proceedings regarding the fine are ongoing and requested
to suspend the present proceeding. Regarding the fine, the club argued that it was
proportionate.
c. Replica of the Claimant
21. In his replica, the Claimant insisted on FIFA’s competence to decide the matter at hand as
the Football Arbitration court of the Country B FA does not comply with standards of an
independent arbitration tribunal guaranteeing equal representation and fair proceedings.
22. As to the substance, the player reiterated his position.
23. Regarding the alleged appeal proceedings regarding the fine, the player held he was not
informed so far. According to him it was a contractual penalty imposed, rather than a
“disciplinary” proceeding.
pg. 6
24. The player rejected the allegations of his “decreasing sporting performance”.
25. He argued that relegation is no reason not to pay salaries and bonuses.
26. Regarding June 2022, the player held that he was removed from the club’s training and
WhatsApp group on 13 June 2022 and was forced to train alone. In this regard, he rejected
the club’s claim having returned early to his club in Country A.
d. Duplica of the Respondent
27. In its duplica, the Respondent reiterated its position and held the standards of an
independent arbitration tribunal guaranteeing equal representation and fair proceedings
are met by the NDRC in Country B.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. First of all, the Single Judge (hereinafter also referred to as Single Judge) analysed whether
he was competent to deal with the case at hand. In this respect, he took note that the
present matter was presented to FIFA on 9 August 2022 and submitted for decision on 15
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.
29. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (October 2022),
he is, in principle, 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.
30. The Single Judge further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the Football Arbitration court of the Country B FA, alleging that
the latter is competent to deal with any disputes deriving from the relevant employment
contract, in accordance with its clause 13 par. 3.
31. The Single Judge also noted that the Claimant insisted on the competence of FIFA to
adjudicate the present claim, sustaining that the Football Arbitration court of the Country
B FA is not an independent arbitration tribunal guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs.
pg. 7
32. Taking into account all the above, the Single Judge emphasised that in accordance with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by an independent arbitration tribunal that has been established at
national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Single Judge referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
33. In this respect, the Single Judge noted that the Respondent failed to provide any
documentary evidence which could prove that the Football Arbitration court of the Country
B FA meets the requirements established in art. 22 par. 1 lit. b) of the Regulations on the
Status and Transfer of Players, detailed in the FIFA Circular no. 1010 as well as in art. 3 par.
1 of the NDRC Regulations. On account of the above, and referring to the principle of
burden of proof contained in art. 13 par. 5 of the Procedural Rules, the Single Judge
established that the Respondent’s objection towards the competence of FIFA to deal with
the present matter must be rejected, and FIFA is competent, on the basis of art. 22 par. 1
lit. b) of the Regulations, to consider the present matter as to the substance.
34. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 August 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
35. The Single Judge 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 Single Judge
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
36. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
pg. 8
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge 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
37. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties dispute the amount of the outstanding
remuneration claimed by the player.
38. In this context, the Single Judge acknowledged that his task was to determine if the
Claimant is entitled to the outstanding remuneration and if yes, to what extent.
39. According to the player, the club failed to remit parts of his remuneration as well as certain
bonuses.
40. The Single Judge noted that the Respondent did not contest the debt as such but argued
that no match bonuses were due since the club was relegated. In general, the club held
that the player’s sporting performance decreased.
41. Subsequently, the Single Judge pointed out that in the case at hand the Respondent bore
the burden of proving that it indeed complied with the financial terms of the contract
concluded between the parties. Nonetheless, the Respondent failed to do so.
42. In this regard, the Single Judge rejected the argument of the club that the match bonuses
were not due since the club was relegated as the contract did not establish such
requirement. Further, the Single Judge stated that the Claimant substantiated his claim
regarding the match bonuses with corresponding statistics.
43. In accordance with the long-standing jurisprudence of the Football Tribunal, the Single
Judge maintained that the alleged fine shall not be deducted from the player’s receivables
as fines shall not be set off with salaries. In any case, the Single Judge established that as it
remained unclear if due process, i.e. the player’s right to be heard, was respected.
44. On account of the above, the Single Judge decided to partially accept the claim.
pg. 9
ii. Consequences
45. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided to award the player the following amounts, along with interest of
5% p.a. as of the respective due dates:
-
Currency Country B 38,885.75 as outstanding part from Country B Currency
57,335.75 as bonuses related to matches until December 2021;
Currency Country B 44,980.24 as outstanding part from Country B Currency
84,622.24 as salary for March 2022;
Currency Country B 85,084.35 as outstanding salary for April 2022;
Currency Country B 83,575.62 as outstanding salary for May 2022;
Currency Country B 85,493.52 as outstanding salary for June 2022;
Currency Country B 25,545.30 as bonuses related to matches until June 2022.
iii. Compliance with monetary decisions
46. Finally, taking into account the applicable Regulations, the Single Judge 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.
47. In this regard, the Single Judge 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.
48. Therefore, bearing in mind the above, the Single Judge 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.
49. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
pg. 10
50. The Single Judge 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
51. The Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
52. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation or legal costs
shall be awarded in these proceedings.
53. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 11
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, A.
2.
The claim of the Claimant, A, is partially accepted.
3.
The Respondent, B, has to pay to the Claimant, the following amount(s):
- Currency Country B 38,885.75 as outstanding bonuses plus 5% interest p.a. as from 31
May 2022 until the date of effective payment;
- Currency Country B 44,980.24 as outstanding remuneration plus 5% interest p.a. as
from 11 April 2022 until the date of effective payment;
- Currency Country B 85,084.35 as outstanding remuneration plus 5% interest p.a. as
from 11 May 2022 until the date of effective payment;
- Currency Country B 85,575.62 as outstanding remuneration plus 5% interest p.a. as
from 11 June 2022 until the date of effective payment;
- Currency Country B 85,493.52 as outstanding remuneration plus 5% interest p.a. as
from 11 July 2022 until the date of effective payment;
- Currency Country B 25,545.30 as outstanding bonuses plus 5% interest p.a. as from 31
July 2022 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
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 Governing the Football
Tribunal).
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
pg. 13