Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 18 April 2024
regarding an employment-related dispute concerning
the player A
BY:
Martín AULETTA (Argentina), Deputy Chairperson
Roy VERMEER (The Netherlands), member
Khalid AWAD ALTHEBITY (Saudi Arabia), member
CLAIMANT:
Player A, Country A
RESPONDENT:
Club B, Country B
pg. 2
I. Facts of the case
1.
Following a previous employment relationship, on 12 July 2023, the player A and club B concluded
a mutual termination agreement (hereinafter: the first mutual termination agreement).
2.
The first mutual termination agreement stipulated, inter alia, the following:
“The (…) parties hereby agree that the total debt of the club B to the player is the NET amount of USD
143,000 (One Hundred Forty-Three Thousand Dollars, Net of all Taxes), broken down as follows:
USD 125,000 (One Hundred Twenty-Five Thousand Dollars), Outstanding Payable amount from the
season 2022-2023.
USD 10,000 (Ten Thousand Dollars), Bonus for Championship in Country B Pro League 2023.
USD 8,000 (Eight Thousand Dollars), Bonus for Championship in Country B Cup 2023.
(…)
Note 3: In case the club does not transfer the amount mentioned in Note 1 by August 11, 2023, the
player is entitled to receive the amount of this agreement (USD 143,000 Net) plus USD 100,000 (One
Hundred Thousand Dollars) as compensation for the delay in payment. (Totaling USD 243,000)”
3.
On 25 August 2023, the player and the club concluded a new mutual termination agreement
(hereinafter: the second mutual termination agreement).
4.
Art. 1 and Art. 3 of the second mutual termination agreement provided as follows:
“Note 1: the above parties hereby agree that the total debt of the club B to the player is NET amount
of USD 163,000 (Only One Hundred Sixty Three Thousand Dollars, Net of all Taxes), broken down as
follows: - USD 125,000 (One Hundred Twenty Five Thousand Dollars), Due Payable amount from the
season 2022-2023
USD 10,000 (Ten Thousand Dollars), Bonus of Championship in Country B ProLeague 2023
USD 8,000 (Eight thousand Dollars), Bonus of Championship in Country B Cup 2023
USD 20,000 (Twenty thousand dollars), as interest
[…]
Note 3: club will request FIFA to transfer the amount of USD 163,000 to the bank account, provided by
the player and deduct the same amount from the club’s money, currently kept by FIFA (Club’s Benefit
of World Cup 2022) and the player admits he will sign the necessary documents of FIFA.
In case, the amount of Note 1, is not transferred by 24 Sep 2023, the player is entitled to receive the
amount of this agreement (USD 163,000 Net) plus USD 150,000 (One Hundred Fifty Thousand Dollars)
as compensation for the delay in payment. (Total USD 313,000 – three hundred thirteen thousand
dollars).
5.
Art. 2 of the second mutual termination agreement stipulated the following:
“The parties of the agreement (Club B and Player Mr. A) agree that no later than a month after the
signing date of the current agreement (not later than 22 Sep 2023), the amount mentioned in Note 1,
(USD 163,000) will be transferred by B to the bank account which is provided by the player as below”
pg. 3
II. Proceedings before FIFA
6.
On 16 October 2023, the player lodged a claim before FIFA for outstanding transfer fee arising
from the second mutual termination agreement and requested the payment of the following
amounts:
USD 163,000 plus 5% interest p.a. as from 23 September 2023;
USD 150,000 net as penalty.
7.
In its reply, the club explained that, due to international sanctions against Country B banking, it
had no way to transfer the amount to the player directly. Therefore, they negotiated with the
player to sign a settlement agreement, where club B agreed to pay USD 163,000 (USD 143K +
20K) and agreed a compensation from USD 100K to USD 150K.
8.
Club B considered that FIFA would transfer the amounts on behalf of the club. The club
requested FIFA to transfer the amount of USD 163,000 to the player's bank account and deduct
the same amount from the FIFA Club's Benefit Programme for the FIFA World Cup 2022.
9.
The club argued that FIFA took more than fifty days to receive the necessary approval of the
payment, causing a delay in transferring the amount to the player.
10. The club stated that the player agreed to receive his money through FIFA and signed the
necessary documents of FIFA. However, when FIFA sent the payment forms to the player, he
refrained from signing them, indicating his intention to continue his claim against the club before
FIFA.
11. Club B argued that the player's refusal to sign the payment forms is unfair, as he had previously
agreed to the payment being made by FIFA on behalf of the club. The club requested FIFA to
modify its proposal and invite the player to sign the form and receive his amount (USD 163,000)
immediately.
12. Club B highlighted the Principle of Equity and requests the player and/or FIFA to drop the claim
against the club. The club considered that even if the player wins the case, receiving an additional
amount (USD 150,000) as compensation for the delay in payment would not be fair insofar it
would be a disproportionate amount.
13. In his replica, the player rejected the Club's argument that the delay in payment processing by
FIFA was due to international sanctions on Country B banks lacks legal substantiation and
considered that it does not absolve the Club of its contractual obligation to make timely
payment.
14. The player insisted that the penalty amount of USD 150,000, as stipulated in the Termination
Agreement, was agreed upon during the negotiation process and was not imposed arbitrarily.
The player argued that the Club's sudden objection to the penalty's excessiveness during the
FIFA proceedings suggests a lack of good faith.
15. According to the player, the Club's repeated breach of contracts and failure to make timely
payments should not result in him bearing the consequences. The Player argued that he did
pg. 4
everything requested by the Club to receive the outstanding amount on time.
16. The player insisted that the penalty was negotiated and agreed upon by both parties, and the
Club had the opportunity to object during the negotiation phase.
17. The Club's objected to the penalty amount and delay in payment processing by FIFA are untimely
and lack legal validity.
18. The Respondent failed to provide his duplica.
pg. 5
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 16 October 2023 and submitted for decision on 18
April 2024. Taking into account the wording of art. 34 of the May 2023 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 (May 2023 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 (May 2023 edition), and considering that the
present claim was lodged on 16 October 2023, the May 2023 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 abovementioned 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.
pg. 6
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 present matter concerns the payment of outstanding amounts arisen
from a mutual termination agreement.
7.
In this context, the Chamber observed that the Claimant requested the payment of USD 163,000
net, corresponding to the principal amount established in the termination agreement, as well as a
default penalty in the amount of USD 150,000 net.
8.
In relation to the principal amount, the Chamber noted that the Respondent did not contest that
said amount is due. However, the Chamber observed that the club initially requested the
intermediation of FIFA in order to perform the payment.
9.
In relation to this issue, the Chamber reflected that said intermediation was ultimately not achieved.
10. However, the Chamber understood that this possible intermediation, in any case, does not alter the
contractual obligations concluded between the parties. Indeed, any potential role FIFA could have
played should be viewed within the framework of contractual facilitation rather than as a
determinant of the parties' legal obligations. In other words, said possible facilitation does not
absolve either party from fulfilling their contractual duties.
11. Therefore, in line with the principle of pacta sunt servanda, the Respondent shall pay to the Claimant,
the agreed amount of USD 163,000 net.
12. In addition, in line with the longstanding jurisprudence of the Football Tribunal, the Chamber
decided to award 5% interest p.a. as from the due date over the principal amount.
13. In relation to the established penalty clause, the Chamber noted that the termination agreement
established an amount of USD 150,000 net as penalty in case the principal amount “is not transferred
by 24 Sep 2023”, as it occurred in the present matter.
14. In this respect, the Chamber observed that this penalty fee represents 92% of the principal amount.
Hence, a majority of the Chamber considered this rate to be disproportionately high.
15. In view of the above, the majority of the Chamber deemed it appropriate to reduce the penalty fee
by 50%, leading to a revised penalty amount of USD 75,000.
16. Thus, the Chamber established that the Respondent shall pay to the Claimant, a contractual penalty
in the amount of USD 75,000.
ii. Compliance with monetary decisions
pg. 7
17. 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.
18. 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.
19. 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.
20. 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.
21. 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
22. 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.
23. 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.
24. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of
the parties.
pg. 8
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 amounts:
- USD 163,000 net as outstanding remuneration plus 5% interest p.a. as from 23 September 2023
until the date of effective payment;
- USD 75,000 net as contractual penalty.
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
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. 9
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
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