Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 27 April 2023
regarding an employment-related dispute concerning
the player Player A
BY:
Frans de Weger (The Netherlands), Chairperson
Laurel Vaurasi (Fiji), member
Khadija Timera (Senegal), member
CLAIMANT:
Player A, Country A
Represented by
RESPONDENT:
Club B, Country B
Represented by
pg. 2
I. Facts of the case
1.
On 15 February 2021, the player Player A from Country A (hereinafter: the Player or the
Claimant) and the club of Country B (hereinafter: Club or the Respondent) concluded an
employment contract (hereinafter: the contract) valid as from 1 July 2021 to 30 June 2023.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
amounts:
•
•
•
•
•
USD 200,000 as advance payment, to be paid in 4 instalments:
o USD 50,000 upon signature of the contract;
o USD 50,000 on 15 July 2021;
o USD 50,000 on 15 July 2022;
o USD 50,000 on 15 February 2023;
USD 46,666 as monthly salary, at the end of each calendar month;
An insured car;
An insured house;
2 round trip air tickets for the player and his family (wife + 2 kids), economy class,
during the contract period.
3.
On 23 August 2022, the Player and the club concluded a termination agreement
(hereinafter: the termination agreement), with immediate effect. The termination
agreement contains a typo as to its date of execution since it reads “23 August 2021”.
However, the parties do not dispute that 23 August 2022 is the real date of execution of
the agreement in question.
4.
Clause 3 of the termination agreement stipulates as follows:
“until the present date (i.e., 23.08.2022) the club recognizes that has unlawfully failed to pay
to the player which still are in debt to the player, the following instalments:
a) $50.000,00 (fifty thousand US Dollars) net, that should had been paid on 15.07.2022,
related to the advance payment;
b) $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and sixty-six cents)
net, related to the salary of May of 2022;
c) $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and sixty-six cents) net,
related to the salary of June of 2022;
d) $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and sixty-six cents)
net, related to the salary of July of 2022; and
e) $35.777,77 (thirty-five, seven hundred, seventy-seven US Dollars and seventy-seven cents)
net, related to the salary of 23 (twenty-three) working days of August of 2022.”
pg. 3
5.
Cause 4 of the termination agreement stipulates the following:
“which, all combined, made the total amount, up to that date, of $225.777,75 (TWO
HUNDRED, TWENTY-FIVE THOUSAND, SEVEN HUNDRED, SEVENTY-SEVEN US DOLLARS AND
SEVENTY-FIVE CENTS) net of any taxes, bank fees and foreign exchange charges, wherever
they are due”.
6.
Clause 5 of the termination agreement stipulates as follows:
“the amount above identified in clause (4) - $225.777,75 (TWO HUNDRED, TWENTY-FIVE
THOUSAND, SEVEN HUNDRED, SEVENTY-SEVEN US DOLLARS AND SEVENTY-FIVE CENTS) is
agreed by the contracting parties to be paid by the club to the player as follows:
i. the amount of $112.888,88 (ONE HUNDRED, TWELVE THOUSAND, EIGHT HUNDRED, EIGHTYEIGHT US DOLLARS AND EIGHTY-EIGHT CENTS) net, on the signature date of said termination
agreement (i.e, 23.08.2022); and
ii. the amount of $112.888,88 (ONE HUNDRED, TWELVE THOUSAND, EIGHT HUNDRED,
EIGHTY-EIGHT US DOLLARS AND EIGHTY-EIGHT CENTS) net, on 31.12.2022 the latest”.
7.
Clause 7 of the termination agreement establishes as follows:
“once the employment contract termination is operated prior to its term (i.e. 30.06.2023),
Club B and the player agree that the player is entitled to receive from the club and the club
would have to pay to the player, as compensation for the prior employment contract
termination, all instalments that the player would be entitled until the term of the
employment contract – i.e. the salaries from 24 August 2022 until 30 June 2023, including,
and the advance payment that should be paid on 15.02.2023 – in the total amount of
$527.555,49 (FIVE HUNDRED, TWENTY-SEVEN THOUSAND, FIVE HUNDRED, FIFTY-FIVE US
DOLLARS AND FORTY-NINE CENTS) net of any taxes, bank fees and foreign exchange charges,
wherever they are due.”
8.
Clause 8 of the termination agreement establishes as follows:
“The above identified in clause 7, i.e., $527.555,49 (FIVE HUNDRED, TWENTY-SEVEN
THOUSAND, FIVE HUNDRED, FIFTY-FIVE US DOLLARS AND FORTY-NINE CENTS) net – is agreed
by the contracting parties to be paid by club to the player as follows:
i. the amount of $10.888,89 (ten thousand, eight hundred, eighty-eight US Dollars and eightynine cents) net, on 30.08.2022 the latest;
ii. the amount of $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and
sixty-six cents) net, on 30.09.2022 the latest;
pg. 4
iii. the amount of $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and
sixty-six cents) net, on 30.10.2022 the latest;
iv. the amount of $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and
sixty-six cents) net, on 30.11.2022 the latest;
v. the amount of $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and
sixty-six cents) net, on 30.12.2022 the latest;
vi. the amount of $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and
sixty-six cents) net, on 30.01.2023 the latest;
vii. the amount of $50.000,00 (fifty thousand US Dollars) net, on 15.02.2023, related to the
advance payment;
viii. the amount of $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and
sixty-six cents) net, on 28.02.2023 the latest;
ix. the amount of $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and
sixty-six cents) net, on 30.03.2023 the latest;
x. the amount of $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and
sixty-six cents) net, on 30.04.2023 the latest;
xi. the amount of $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and
sixty-six cents) net, on 30.05.2023 the latest; and
xii. the amount of $46.666,66 (forty-six thousand, six hundred and sixty-six US Dollars and
sixty-six cents) net, on 30.06.2023 the latest”.
9.
Clause 10 of the termination agreement establishes as follows:
“if any of the agreed instalments above better identified in clauses 5 and 8 is not fully paid
within the stipulated time and terms, the player is entitled to received immediately the entire
agreed amount, without the need of any prior notice, notification or communication to the
club”.
10. As per clause 11 of the termination agreement:
11. “the signing parties also agree that if the player signs a new employment contract, to exercise
his professional activity as a professional football player, until June 30th 2023, the amounts
that the player is entitled to receive under the clause 8 of the present contract, with the
exception of the instalment predicted under the subparagraph 8.vii – which shall be fully paid
pg. 5
to the player – will be deducted from the monthly salaries that the player may receive as a
result of entering into a new employment contract […]”.
12. Clause13 of the termination agreement establishes as follows:
“the club shall provide to the player two round flight tickets, to him and to his wife, in
economic class, on the route City A (Country A) – City B (COUNTRY B) – City A (Country A), in
two days after being requested by the player”.
13. On 3 January 2023, the Player signed a new employment contract with the Country A
Club D, valid from 23 January 2023 to 30 June 2023, as per which he was entitled to
receive a monthly payment of EUR 760 gross plus performance bonuses.
II. Proceedings before FIFA
14. On 16 January 2023, 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
15. The Claimant lodged a claim against the Respondent in front of FIFA for non-compliance
with the termination agreement.
16. In his claim, the Player argued that the Club failed to pay him the amount of USD
112,888.88 net due on 31 December 2022. The Club also failed to pay him the 1st
instalment of clause 8 of the termination agreement (USD 10,888.89), as well as the 2nd,
the 3rd, the 4th and the 5th ones (USD 46,666.66 each) on their due dates, i.e., 30.08.2022,
30.09.2022, 30.10.2022, 30.11.2022 and 30.12.2022.
17. The player invokes the acceleration clause (clause 10) of the termination agreement and
deems that the Club should pay him the total of USD 640,444.37 net, plus interest of 5%
p.a. which up until the date of claim amounted to USD 8,052.36.
18. Based on the foregoing, the Player filed the following request for relief:
“The “CLUB B” be ordered and condemned to pay to the Claimant, xxx [sic], the sum of
$648.496,73 (SIX HUNDRED AND FORTY-EIGHT THOUSAND, FOUR HUNDRED AND NINETY-SIX
US DOLLARS AND SEVENTY-THREE CENTS) net, plus interests due for the delay of the agreed
payment calculated from 17.01.2023 until full and effective payment”.
b. Position of the Respondent
pg. 6
19. In its reply, the Respondent acknowledged having concluded a termination agreement
with the Player, but points out to its clause 11, as per which his remuneration with the
new club would be deducted from the amounts due as per clause 8, in case a new
contract would be concluded before 30 June 2023.
20. In this respect, the Club indicated that on 7 February 2023 the player indeed signed a
new contract with the Country A club Club D. The Club claimed that the Player never
informed it of the conclusion of such contract or of its financial terms. Thus, it
understands that “the present claim becomes premature”.
21. Based on the foregoing, the club requested the following:
“Mainly: To reject the claim of the player.
Subsidiary: To request from the player to provide a copy of his new contract signed with club
Club D and allowed Club Club B to present an additional observations”.
c. Rejoinder of the Claimant
22. In his replica, the Claimant first pointed out that the amount of USD 225,777.75 foreseen
in clause 5 of the termination was not subject to any type of deductions. Furthermore,
he underlined that clause 10, i.e., the acceleration clause, foresaw that the entire
amount would become immediately due, without prior notice, in case one of the
instalments was not paid on time.
23. He acknowledged having concluded an employment contract with Club D on 3 January
2023, but understands that he was “more than entitled, on 03.01.2023, to receive
immediately the entire agreed amount, without the need for prior notice, notification or
communication to the Respondent, and consequently, without any possibility of being
deducted to the compensation amount any value related to the new employment contract”.
24. The Player understands that “there wasn´t, and still there isn´t any necessity to inform the
Respondent about the celebration of employment contract signed with Club D, once the over
said event is absolutely inconsequent and irrelevant towards the employment contract
termination signed by the Claimant and the Respondent, not producing any effects on it. In
this regard, the amounts predicted on the employment contract celebrated by the Claimant
and Club D shall not be deducted to the compensation amount predicted on the employment
contract termination celebrated by the Claimant and the Respondent, as it is very clear”.
25. Based on the foregoing, the Player insists on his original request for relief.
d. Final comments of the Respondent
pg. 7
26. The Respondent repeated the argumentation and the request for relief presented in its
reply.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 16 January 2023 and
submitted for decision on 27 April 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.
28. 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
player from Country A and a club from Country B.
29. 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 16 January 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
30. 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
31. 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
pg. 8
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
32. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that this is a claim of a player against a club for outstanding
amounts originating from a termination agreement.
33. The Chamber observed that the disagreement between the parties revolves around the
issue of whether the Player’s new salaries should be deducted from the payment due as
per clause 8 or not. The Player, on the one hand, deems that the full residual amount of
the termination agreement fell due at the moment the Club first failed to pay an
instalment, i.e., on 31 August 2022; since the new contract was only signed later on, on
3 January 2023, no deductions should be made from the compensation. The Club, on
the other hand, understands that such deduction as per the new contract must still
apply.
34. In this context, the Chamber acknowledged that it remained undisputed between the
parties that:
•
The parties concluded a termination agreement on 23 August 2022, which roughly
stipulated that the Club should pay the Player outstanding remuneration and
compensation in instalments.
•
The termination agreement contained an acceleration clause (clause 10) and clause
11 that stipulated that in case the player would sign a new contract before 30 June
2023 his new remuneration would be deducted from the amounts stipulated in
clause 8 (compensation).
•
The Club only paid the Player the first instalment of USD 112,888.88, due upon
signature of the termination agreement.
•
The Player concluded a new employment contract with Club D on 3 January 2023 for
a monthly salary of EUR 760 gross, valid from 23 January 2023 to 30 June 2023.
35. The Chamber observed that the contract does not explicitly establish whether there is a
relation between the point in time where the non-payment happens and the signature
of the new contract. However, the Chamber considered that clauses 10 and 11 can be
combined and concluded that with the termination agreement the parties intended to
establish the amounts of outstanding remuneration and compensation due to the
Player, taking into account any future mitigation of the damages caused by the
premature termination of the contract. In this respect, the Chamber stated that even if
pg. 9
the full residual amount of the contract fell due at the moment of the first non-payment,
i.e. on 31 August 2022, the Player still concluded a new employment contract before 30
June 2023 and his new remuneration should be deducted from the amount due to him
as compensation as per clause 8 of the termination agreement.
36. In accordance with the pertinent employment contract, the Player was entitled to
approximately EUR 760 per month. Therefore, the Chamber concluded that the amount
of EUR 3,996/USD 4,266 (5*EUR 760 plus 760/31*8) is to be deducted from the
compensation as per clause 8 of the termination agreement.
37. As a consequence, and 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
amounts which were outstanding under the termination agreement totalling USD
636,178.37, i.e., USD 122,888.88 plus USD 527,555.49 as per clause 8 of the termination
and triggered on 31 August 2022 in accordance with clause 10 of the termination
agreement less USD 4,266.
38. 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 USD 636,178.37 as from 31 August 2022 until the date of
effective payment.
ii. Compliance with monetary decisions
39. 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.
40. 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.
41. 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.
pg. 10
42. 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.
43. 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
44. 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.
45. 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.
46. Lastly, the DRC 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 claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, must pay to the Claimant the following amount:
- USD 636,178.37 as outstanding remuneration plus 5% interest p.a. as from 31 August
2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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.
6.
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.
7.
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