Labour Disputes
Texto da decisão
REF FPSD-XXXX
Decision of the
Dispute Resolution Chamber
passed on 7 March 2023
regarding an employment-related dispute concerning the player A
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Angela Collins (Australia), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Player A, Country A
Represented by
RESPONDENT:
Club B, Country B
Represented by
Page 2
REF FPSD-XXXX
I. Facts of the case
1.
On 27 January 2022, the Country A player Player A (hereinafter the player or the Claimant)
and the Country B club B (hereinafter the Respondent) signed an Employment Agreement
(hereinafter the Employment Agreement) valid as from 27 January 2022 until 26 July 2022.
2.
According to Clause 5 of the Employment Agreement, the Claimant and the Respondent
(hereinafter jointly referred to as the parties) agreed upon the following financial
conditions:
“The Club shall pay the following fixed monthly remuneration to the Player (net of any taxes,
bank fees and foreign exchange charges):
Payment type
Monthly Salary from 27.01.2022 to 26.07.2022
Currency
EURO
Amount
250,000.00 net
The Club shall pay to the Player each monthly salary payment by the last day of each month
for a total of 6 months, being a total amount of EURO 1.500.000 net of any taxes in
Country B.
All the amounts stipulated in this Contract in favour to the Player refers to net amounts from
Country B taxes.
For this Contract the meaning of word Net is: without any deductions and/or expenses
and/or taxes and/or charges and/or costs and/or restrictions. For more clarity it means that
no income tax and/or other taxes and/or costs and/or charges and/or deductions and/or
expenses will be payable by the Player in the Country B a for any remuneration received
during the Term". (emphasis added)
3.
Furthermore, in Clause 8 of the Employment Agreement the parties stipulated:
“1. In the event that the Player commits a violation of any of his obligations under this
Contract or the applicable regulations, the Club may impose disciplinary sanctions against
the Player (as long as the breach committed could be irrefutably verified). The Club shall
duly charge the Player and shall notify him in writing of the details of such charges. The
Player shall be provided with an opportunity to respond to the charges. In particular, the
Player declares that he is aware of the applicable Association Country B regulations,
including the Players' Status Regulations and the Disciplinary and Ethics Regulations (which
are freely available on the official Association Country B website).
2. In the event that the Player fails to fulfil his obligations under this Contract, the Club may
impose one or more of the following sanctions against the Player in accordance with the
Club's disciplinary rules:
(a)
a written warning;
Page 3
REF FPSD-XXXX
(b)
(c)
(d)
a reprimand;
a fine; and/or
community football service
3. Fines for minor offences which are imposed by the Club on the same day as the offence
may not exceed the amount corresponding to one (1) day of the fixed monthly remuneration
payable to the Player (the amount to be calculated by dividing the monthly salary by 30)
under the terms of Article 5.1 of this Contract.
4. Under no circumstances shall the Club sanction the Player for the poor performance of
the team and/ or alleged poor play.
5. The Club shall not impose a fine on the Player if the Club has not complied with its own
financial obligations towards the Player under the terms and conditions of this Contract.
6. In choosing and levying a sanction, the Club shall take into account all circumstances of
the case. The Club shall notify the Player in writing at least 1-t days prior to the hearing. The
Player may be represented in disciplinary proceedings by a person (of any nationality)
authorised by the Player for that purpose.
7. The Club recognises that if the sanction consists of a fine, and such fine is deducted by
the Club from the Player's salary, the Player is entitled to file a c\ain1 at the FIFA DRC to
assess the legitimacy of the fine.”
4.
On 7 June 2022, the Respondent requested the Claimant to provide information as to his
absence between 4 and 7 June 2022.
5.
In reply thereto, dated 8 June 2022, the Claimant alleged that he “requested authorization
to Mr. Coach C (in his capacity as coach) and Director D (in his capacity as director), to be
absent from the aforementioned date, both having granted me authorization to do so.”
6.
On 14 June 2022, the Respondent insisted on a proof that the Claimant was “permitted to
be absent”.
7.
On 16 June 2022, the Claimant reiterated that his absence was approved. He asserted
that “such authorizations were given verbally, because of the good faith and trust that binds
the Player and your Club.”
8.
On 19 June 2022, Coach C wrote a statement to the “professional manager” of the
Respondent, clarifying that no such authorization was granted.
9.
On 18 June 2022, the Claimant sent a default notice to the Respondent, requesting the
payment of EUR 500,000. Furthermore, the Claimant informed the Respondent that he
Page 4
REF FPSD-XXXX
“will undergo a medical examination at Hospital E in City E on June 20, 2022, which is one of
the most prestigious medical centres in the world when dealing with knee injuries. Player A will
duly inform Club B about the results of such examination.”
10. On 20 June 2022, the Claimant received a letter from the Respondent, imposing a fine of
50% of June 2022 salary, alleging that the Claimant was absent from 4 June to 7 June 2022.
11. In its correspondence of 21 June 2022, the Respondent requested the Claimant to justify
his absences between 18 to 20 June 2022.
12. On 22 June 2022, the Respondent requested the Claimant to justify his absences between
21 to 22 June 2022.
13. On 22 June 2022, the Claimant sent a letter to the Respondent (i) rejecting the legitimacy
to impose him a fine of 50% of his June monthly wage as the absences had been approved
by the Respondent as well as in line with Clause 8.5 of the Employment Agreement; (ii)
reiterated his justification for the nonappearances from June 18 to June 22 based on the
second medical opinion he was seeking in City E (Country F), including the respective
documentation.
14. On 30 June 2022, the Respondent sent further communication to the Claimant, asserting
that the latter was absent 24 days of June 2022.
15. In reply thereto, the Claimant refuted the above-mentioned allegation on 5 July 2022.
16. On the same day, the Claimant formally appealed the fine imposed to him due to alleged
absences between 4 and 7 June 2022, pursuant to the violations and sanctions regulations
provided by the Respondent on 30 June 2022.
17. On 23 July 2022, the Respondent imposed a further fine of 50% of June 2022 salary,
concerning the alleged absences between 18 and 27 June 2022.
18. On 27 July 2022, the Claimant formally appealed the fine imposed to him due to alleged
absences between 18 and 27 June 2022, pursuant to the violations and sanctions
regulations provided by the Respondent on 30 June 2022.
19. On 29 August 2022, a confirmation letter by the FIFA general secretariat (i.e. a Decision)
was sent out, stipulating that the Respondent has to make a payment of two monthly
salaries (April and May 2022) to the Claimant.
20. On 13 September 2022, the Claimant sent a default notice to the Respondent, requesting
the payment of EUR 500,000, granting the latter 15 days to remedy its default.
Page 5
REF FPSD-XXXX
21. On 26 September 2022, the Respondent informed the Claimant that the appeal against
the fine imposed on 23 July 2022 was not accepted. No information was provided
regarding the appeal of the fine imposed on 20 June 2022.
22. On 1 December 2022, the Respondent made a payment of EUR 229,839 to the Claimant.
II. Proceedings before FIFA
23. On 13 October 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
24. The requests for relief of the Claimant were the following:
“a. Accept this Claim.
b. Require the Respondent to pay the Player the undisputed and uncontested salary amount
of net EUR 250,000.
c. Declare that the fines imposed to the Player by the Club, totalling net EUR 250,000, are
unlawful and in breach of the Employment Contract or, alternatively, unjustified and,
consequently, render them ineffective recognizing the right of the Claimant to be paid said
net EUR 250,000.
d. Award the interest on the aforementioned amounts at the rate of 5% p.a. from 1 July 2022
and 1 August 2022, respectively, until the date of effective payment.
e. Award the Claimant any further or other relief as the DRC sees fit.
f. Order the Respondent to bear any and all costs of the proceedings before FIFA, if any; and
therefore release the Claimant to bear any and all such costs.”
25. The Claimant based its claim on the legal principle pacta sunt servanda and art. 12bis of
the Regulations.
26. The Claimant argued that “the Respondent's debt is clear, undisputed and uncontested
regarding the owed salary of net EUR 250,000, not affected by the disciplinary proceedings
initiated by the Club.”
27. As to the claimed EUR 250,000 concerning the “reduced” salary due to the imposition of
fines, the Claimant asserted that those fines cannot be acknowledged based on Clause 18
par. 5 of the Employment Agreement: “The Club shall not impose a fine on the Player if the
Club has not complied with its own financial obligations towards the Player under the terms
and conditions of this Contract.”
Page 6
REF FPSD-XXXX
28. In this respect, the Claimant pointed out that the Respondent was in default of payment
of April and May 2022 salaries and hence, not in a position to impose the fine in line with
the above-quoted provision.
29. Furthermore, the Claimant argued that his absences were justified, in particular taking
into account the evidence about his medical state.
30. In view of the above, the Claimant was of the opinion that the salary reduction was not
justified, and he shall be entitled to its full value.
b. Position of the Respondent
31. The Respondent rejected the claim of the Claimant and argued that:
“a) Partially dismiss the claimants claim;
b) Declare that the claimant calculation of his overdue salary be incorrect;
c) Declare that the sanctions against the player be justified;
d) Consider the player to have been absent without leave for a prolonged period without
permission or valid cause;
e) Declare the player only be due the following amounts:
i. June 2022 - €125 000.00 (Salary less 50% sanction)
ii. Pro rata July 2022 - €104 839.00 (26 days less 50% sanctions)
f) Order the claimant to bear any and all cost relating to this matter’s proceedings.”
32. The Respondent argued that it indeed has the right to implement a sanction on the
Claimant since it ”engaged with the player in an effort to give the player an opportunity for
him to justify his absence and provide the permission he had received to be absent.”
33. As to the absence due to the medical reasons, the Respondent highlighted that “second
opinion in respect of his injury, would still need to be with the authorization of the club.” Due
to the fact that the Claimant never requested for the permission, the Respondent argued
that it had “full right to impose the sanction on the player”.
34. Furthermore, the Respondent denied that there is an “undisputed salary owed” based on
the fact that “the July 2022 salary is a pro-rata payment on only 26 days of July, as
January 2022 was pro-rata rated” and, consequently, shall amount to of EUR 229,839.
c. Comments of the Claimant
35. Following the payment of 1 December 2022 made by the Respondent, the Claimant sent
the following letter:
“We acknowledge receipt of the transfer by the Player but note that the amount transferred is
below the net EUR 500,000 plus interest requested in the above referenced matter and,
consequently, we do not consider this matter settled.
Page 7
REF FPSD-XXXX
Therefore, we must refer to the requests made in the statement of claim, whereby the Player
requests Club B to:
Pay the undisputed and uncontested salary amount of net EUR 250,000, noting in this regard
that the transfer recently made by Club B would not even cover this payment.
Declare that the fines imposed to the Player by the Club, totalling net EUR 250,000, are unlawful
and in breach of the Employment Contract or, alternatively, unjustified and, consequently,
render them ineffective recognizing the right of the Player to be paid said net EUR 250,000.
Award the interest on the aforementioned amounts at the rate of 5% p.a. until the date of
effective payment.
Award the Player any further or other relief as the DRC sees fit.
Order Club B to bear any and all costs of the proceedings before FIFA.”
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 13 October 2022 and
submitted for decision on 7 March 2023. Taking into account the wording of art. 34 of the
June 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 July 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 13 October 2022, the July 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
Page 8
REF FPSD-XXXX
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
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 foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the payment of certain
financial obligations by the Respondent as per the contract, namely of June and July 2022.
7.
In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
8.
The Chamber first noted 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.
9.
First of all, the DRC recalled Clause 5 of the Employment Agreement: “The Club shall pay
to the Player each monthly salary payment by the last day of each month for a total of
6 months, being a total amount of EURO 1.500.000 net of any taxes in Country B.”
10. Based on the above, the Chamber established that each monthly salary payment
amounts to EUR 250,000, i.e. no pro rata calculation shall apply to the salary of July 2022
as asserted by the Respondent.
11. Second of all, the DRC recalled further argumentation of the Respondent that the salary
of June 2022 had been reduced due to an imposition of disciplinary fines.
Page 9
REF FPSD-XXXX
12. Consequently, the DRC acknowledged that its task was to analyse the validity of the salary
reduction, in particular, whether the fines imposed by the Respondent were
proportionate and whether, during the imposition of said fines, a due process was
followed.
13. In this respect, the Chamber took note of the wrongdoings of the Claimant invoked by the
Respondent, however, the DRC pointed out that the Respondent did not provide the
applicable Association Country B Disciplinary and Ethics Regulations nor any evidence
that the disciplinary process was duly conducted in accordance with the said framework.
14. Furthermore, the Chamber recalled the wording of Clause 8 of the Employment
Agreement and established that in accordance therewith, the Respondent should have
opted for more lenient measures before imposing a fine (e.g. a warning and a reprimand
were at Respondent’s disposal).
15. Taking into account the above, the DRC concluded that the fines imposed by the
Respondent are null and void and, the salary of June 2022 shall be paid in its entirety.
ii. Consequences
16. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences.
17. The Chamber observed that the Claimant confirmed having received the amount of
EUR 229,839 from the Respondent, corresponding to the July 2022 salary.
18. The Chamber therefore took note that the financial obligations deemed as outstanding
in the present case correspond to EUR 250,000 for the June 2022 salary and EUR 20,161,
which remained outstanding from the July 2022 salary.
19. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Player is liable to pay to the Club the amounts
which were outstanding under the contract, i.e. EUR 270,161.
20. 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 respective due dates until
the date of effective payment.
Page 10
REF FPSD-XXXX
iii. Art. 12bis of the Regulations
21. In continuation, the DRC referred to art. 12bis of the Regulations, which stipulates that
any club found to have delayed a due payment for more than 30 days without a prima
facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
22. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
23. Accordingly, the DRC confirmed that the club had delayed a due payment without a prima
facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
24. The DRC further established that by virtue of art. 12bis of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the fifth offense (first being FPSD-xxx, second being FPSD-xxxx, third
being FPSD-xxxx, fourth being FPSD-xxxx) by the club within the last two years, the DRC
decided to impose a warning and a fine of USD 40,000 on the club in accordance with
art. 12bis of the Regulations.
25. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with
art. 12bis par. 6 of the Regulations.
iv. Compliance with monetary decisions
26. 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.
27. 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.
28. 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
Page 11
REF FPSD-XXXX
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.
29. 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.
30. 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
31. 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.
32. 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.
33. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 12
REF FPSD-XXXX
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant, the following amount(s):
- EUR 250,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July
2022 until the date of effective payment;
- EUR 20,161 net as outstanding remuneration plus 5% interest p.a. as from
1 August 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand shall be imposed on the Respondent.
5.
The Respondent is further ordered to pay a fine in the amount of USD 40,000. The fine is
to be paid within 30 days of notification of the present decision to FIFA to the following
bank account with reference to case nr. FPSD-7859:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
6.
Full payment of the amounts stipulated in point 2. (including all applicable interest) shall
be made to the bank account indicated in the enclosed Bank Account Registration Form.
7.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
of the amounts stipulated in point 2. (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.
Page 13
REF FPSD-XXXX
8.
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.
9.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 14
REF FPSD-XXXX
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
Page 15