Dispute Resolution Chamber
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 17 June 2021
regarding an employment-related dispute concerning the player A
COMPOSITION:
Omar Ongaro (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Roy Vermeer (Netherlands), member
CLAIMANT:
Player A, Country A
Represented by
RESPONDENT:
Club B, Country B
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I.
FACTS OF THE CASE
1.
On 17 July 2017, the Claimant and the Respondent concluded an employment agreement
(hereinafter: ‘the contract’) valid between 17 July 2017 and 31 May 2020.
2.
Based on said contract, the Claimant was entitled to receive inter alia for the season
2019/2020, the total amount of EUR 2,300,000, payable as follows: an instalment of EUR
320,000 on 31 August 2019, and 9 instalments of EUR 220,000 on the last day of each
month in the period between September 2019 and May 2020.
3.
On 14 September 2019, the Claimant signed the 2019/2020 Football Season Professional
Football Disciplinary Regulations of the club (hereinafter: ‘the Disciplinary Regulations’),
which provide in art. 7 or the following clause:
‘Fines that may be imposed hereunder may either be applied during the season or within 1
month following the final official game of the Club, and shall be deducted from accrued
payments or receivables – if any – of the player’.
4.
Moreover, art. 8-7 (a) of the Disciplinary Code holds for the following clause:
‘(7) Fines in case of yellow and red cards and ban from game and deprivation of rights by
Country B FA or UEFA) Except for the first yellow cards encountered within the scope of
football rules as a result of the position, any yellow and/or red card shown to the player
shall lead to a fine of at least 2% of the guaranteed season value of the player, according
to the decision by the board’.
5.
On 15 April 2020, the Respondent requested the Claimant to agree with a 30% reduction
of his monthly salary, in view of the financial consequences of the COVID-19 pandemic.
6.
On 15 May 2020, the Claimant put the Respondent in default for the salaries between
February and April 2020, which were allegedly not paid to him, providing the Respondent
a 72 hours’ deadline to remedy the default.
7.
On 2 July 2020, the Respondent allegedly informed that a 15% reduction in the total salary
of the Claimant would be applied.
8.
On 14 July 2020, the Claimant was invited by the Respondent to present within 48 hours
his written defense as to the possible fine (penalty) that would be imposed on him for
receiving a second yellow card (red card) and being sent off during a match on 12 February
2021.
9.
On 15 July 2020, the Claimant presented his written defense, basically alleging that he had
to do what was better for the team, that he tried to attack the ball but in the end hit the
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opponent. Further, the Claimant deems that he always fulfilled his responsibilities towards
the Respondent and that the Respondent only imposed the fine 5 months after the alleged
incident, as a result of which the Claimant seems that it is not appropriate to impose a fine
on him.
10.
On 24 July 2020, the Respondent imposed fine of EUR 92,000 on the Claimant, for violating
art. 8-7(a) of the Disciplinary Regulations.
II.
PROCEEDINGS BEFORE FIFA
11.
On 2 February 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
12.
On 2 February 2021, the Claimant lodged a claim against the Respondent, claiming
outstanding remuneration in the amount of EUR 437,000, consisting of an the partial
outstanding salary of EUR 217,000 for the month of April 2020 and the full outstanding
salary for the month of May 2020 in the amount of EUR 220,000, as well as 5% interest
p.a. on said amounts as from the due dates.
13.
In his claim, the Claimant explained that due to the COVID-19 pandemic, the final date of
the contract was postponed until 22 July 2020, ‘without any extra financial contribution’.
14.
What is more, the Claimant explains that the club failed to pay him the total amount of
EUR 437,000, corresponding to the unpaid monthly salaries of April and May 2020, minus
an amount of EUR 3,000 that was paid to the Claimant in April 2020.
15.
Moreover, the Claimant explains that never a valid fine was imposed on him, particularly
not ‘the one that might be or have been imposed to THE FOOTBALLER in relation to the
yellow and red cards shown to him in the match against the Country B football club C, on
12th February 2020 (return game of the quarterfinals of the “Country B Cup”/“.
16.
The Claimant deems that a fine should pass 4 criteria: (a) there must be a legitimate aim
for the measure, (b) the measure shall be suitable to achieve the aim, (c) the measure must
be absolutely necessary and (d) the measure must be reasonable. According to the
Claimant, these criteria are not fulfilled.
17.
Finally, the Claimant explains that the fine was never validly deducted from his salaries, as
he simply did not receive the last salary payments anymore, apart from an amount of EUR
3,000 in April 2021.
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18.
In conclusion, the Claimant is of the opinion that the imposition of the fine would entail an
unjustified enrichment for the Respondent, also because it did not act immediately and
imposed the fine only months later.
b.
Position of the Respondent
19.
In its reply, the Respondent first of argue that the default letter dated 15 May 2020, did
not respect the grace period and explains that it informed the player of such fact on 18
May 2020.
20.
What is more, the Respondent explains that in June 2020, it tried to find an amicable
solution with its employees to mitigate the financial consequences of the COVID-19
pandemic and proposed a 30% salary reduction, which was rejected by only 3 players,
including the Claimant.
21.
In view of the foregoing, the club eventually applied a 15% reduction on the 2019/2020
salaries of the Claimant, i.e. his monthly salaries for the months of April and May 2020
were not paid.
22.
What is more, the Respondent explains that it validly imposed a fine of EUR 92,000 on the
Claimant, for receiving tow yellow cars in the match on 12 February 2021. The Claimant
had agreed with the Disciplinary Regulations, which form an integral part of the contractual
relationship. What is more, the Respondent argues that it followed a due process and the
fine is reasonable and proportionate.
23.
As to the salary reduction of 15% of the Claimant’s yearly income, i.e. an amount of EUR
345,000, the Respondent argues that said reduction is fully in line with the COVID-19
Guidelines, as they were made in good faith, are reasonable and proportionate.
24.
Finally, the Respondent submitted several documents, on the basis of which it could be
concluded that the Respondent suffered a COVID-19 related loss of EUR 57,200,000.
25.
In conclusion, the Respondent argues that it valid imposed a fine of EUR 92,000 on the
Claimant, as well as that the amount of EUR 345,000 (15% of the Claimant’s yearly
remuneration) was also validly deducted, as a result of which the claim of the Claimant
should be rejected.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
26.
Competence and applicable legal framework
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 2 February 2021 and submitted
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for decision on 17 June 20921. Taking into account the wording of art. 21 of the 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
27.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition 2021), 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.
28.
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 Player (edition February 2021), and
considering that the present claim was lodged on 2 February 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
29.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
30.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
31.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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 of the fact that the parties strongly dispute whether the Respondent had
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validly imposed a fine of EUR 92,000 on the Claimant, as well as whether the Respondent
could - view of the financial consequences of the COVID-19 pandemic – validly reduce his
yearly income for the 2019/2020 with 15%, i.e. with the total amount of EUR 345,000.
33.
In this context, the Chamber acknowledged that it its task was to determine whether the
aforementioned fine was proportionate and whether during the imposition of it, a due
process was followed, as well as whether the salary reduction of 15% could be validly
applied.
34.
First of all, the members of the Chamber wished to address the fine of EUR 92,000 which
was imposed on the Claimant on 24 July 2020, for receiving a second yellow card (red card)
in a match on 12 February 2021.
35.
In this respect, the Chamber analysed the fine imposed on the Claimant and noted that the
Respondent had in principle followed a due process while investigating whether a fine
should he imposed on the Claimant: the Claimant was requested to present his defense, he
was duly notified of the decision and the legal basis for the fine is clearly explained to the
Claimant.
36.
What is more, the Claimant allegedly agreed and signed the Disciplinary Regulations of the
Respondent, which form a part of the Claimant’s contract. It also remained uncontested
between the parties that the Claimant had indeed received a second yellow card (red card),
and therefore in principle was in breach of art. 8-7(a) of the Respondent’s Disciplinary
Regulations.
37.
However, the Chamber, after having analysed the Disciplinary Regulations, wished to point
out that the fact that a fine for receiving a second yellow card (red card), more than 5
months after such fact took place, is a suspicious and rather unusual timing, which might
lead towards the end of the season towards discussions between the Claimant and the
Respondent as to whether said fine could not be interpreted as an abuse of the Disciplinary
Regulations in an attempt to try to set off outstanding financial obligations towards him.
38.
In general, and referring to its well-established jurisprudence, in any case, the Chamber
wished to point out that the imposition of a fine, or any other available financial sanction
in general, shall not be used by clubs as a means to set off outstanding financial obligations
towards players.
39.
What is more, the members of the Chamber were of the opinion that the imposition of
fines for red or yellow cards are questionable per se, since the risk that a player receives a
yellow or even a red card, are an integral part of the game.
40.
The above circumstances summarized, the Chamber came to the conclusion that
the timing of the fines was suspicious and that the principle of imposing fines in all type
of yellow cards is a questionable concept, as, if a player would receive several fines, he can
end up in a situation, not having the right to receive any salary at all.
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41.
The members of the Chamber concluded that the Respondent, in the current matter at
hand, made in an abusive way use of the Disciplinary Code and set up a construction,
leading to the set off of its financial obligations.
42.
In conclusion, the Chamber determined that the club could not set-off its debt towards
the Claimant by means of the fine of EUR 92,000 imposed on him and that thus, the
amount of EUR 92,000 is due to the Claimant.
43.
Furthermore, the Chamber turned its attention to the reduction of 15% the yearly salary
for the 2019/2020 season, i.e. the total amount of EUR 345,000. Said reduction was
announced to the Claimant by the Respondent on 2 July 2020 and would have retroactive
effect, as the salaries for the months of April and May 2020 would be effected by it.
44.
In this respect, the members of the Chamber analysed the proposed reduction of the salary
and concluded that - despite the fact that the Respondent was undeniable in a worrying
economic situation and did an attempt to find a settlement with the Claimant – the
Respondent tried in good faith to find a sustainable solution with the Claimant.
45.
In this respect, the members deemed that the reduction of 15% of the yearly salary, i.e.
1,5 monthly salaries, which was announced on 2 July 2020 with retroactive effect,
effecting the salaries for the months of April and May 2020 is to be considered excessive.
46.
Moreover, the salary for the month of February 2020, which had remained unpaid for a
considerable time, fell already due before the outbreak of the COVID-19 pandemic, and as
such, the non-payment of said salary cannot be effected by the financial effects of the
COVID-19 pandemic.
47.
On account of all the above circumstances, the members of the Chamber came to the
conclusion that the reduction of 15% of the yearly salary, as announced by the Respondent
to the Claimant on 2 July 2020, is considered excessive and can therefore not be taken
into account.
ii. Consequences
48.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of the circumstances described above.
49.
In this regard, taking into account that the members of the Chamber deemed that the
both the salary reduction in the amount of EUR 345,000, as well as the imposition of a
fine for the total amount of EUR 92,000 could not be taken into account, the Chamber
came to the conclusion that said amounts are due to the Claimant and should be paid by
the Respondent.
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50.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations as per private agreement concluded
with the Claimant and, consequently, is to be held liable to pay the outstanding amount
of EUR 437,000 to the Claimant.
51.
What is more, in accordance with its well-established jurisprudence and the request of the
Claimant, the DRC decided to that the Respondent had to pay default interest at a rate of
5% p.a. until the effective date of payment as follows:
•
•
on the amount of EUR 217,000 as from 1 May 2021;
on the amount of EUR 220,000 as from 1 June 2021.
iii. Compliance with monetary decisions
52.
Finally, taking into account the consideration under numbers 37.and 38. above, the
Chamber referred to par. 1 lit. and 2 of art. 24bis 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.
53.
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.
54.
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. 24bis par. 2, 4, and 7 of the Regulations.
55.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
56.
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. 24bis par. 8
of the Regulations.
d.
57.
Costs
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
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of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
58.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
59.
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, Player A, is accepted.
2.
The Respondent, Club B, has to pay to the Claimant, the following amount:
- EUR 437,000 as outstanding remuneration, plus 5% interest p.a. until the date of
effective payment as follows:
• on the amount of EUR 217,000 as from 1 May 2021;
• on the amount of EUR 220,000 as from 1 June 2021.
3.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
4.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
6.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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