Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 27 October 2022
regarding an employment-related dispute concerning the player B
BY:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
Johan van Gaalen (South Africa), member
Mario Flores Chemor (Mexico), member
CLAIMANT / COUNTER-RESPONDENT:
Club A, Country A
RESPONDENT / COUNTER-CLAIMANT:
Player B, Country B
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I.
Facts of the case
1.
On 1 October 2020, the Player B from Country B (hereinafter: the Player), and the Club A
from Country A (hereinafter: the Club) signed an employment contract (hereinafter: the
Contract) valid as from the date of signature until 31 May 2022.
2.
In accordance with the Contract, the Club undertook to pay the Player an annual
remuneration of EUR 200,000 payable in 10 equal instalments.
3.
Furthermore, on the same day, the Player and the Club (hereinafter jointly: the Parties)
allegedly signed an appendix to the Contract (hereinafter: the Appendix), which
supplemented the Contract with regards to the remuneration owed to the Player.
4.
In accordance with the Appendix, the Club allegedly undertook to pay the Player an
additional annual amount of EUR 500,000, resulting in a total annual remuneration in
accordance with the Contract and Appendix of EUR 700,000.
5.
On 5 April 2021 the Player claims to have put the Club in default of payment of
EUR 234,896, corresponding to allegedly unpaid salaries as from January 2021 until March
2021, granting a 10-day deadline for the Club to remedy the breach. Said debt was
subsequently paid, in delay, by the Club. It appears that this payment was subsequently
effected by the Club, and was not claimed in the present proceedings.
6.
According to the Player, the Club ceased to make contractual payments as of September
2021, leading to a total debt of EUR 215,000 by the end of the year 2021. Instead of
terminating the Contract due to outstanding salaries, the Player requested a transfer to
another club.
7.
On 15 January 2022, the Club and the Club C from Country C signed a transfer agreement
for the Player to join the latter (hereinafter the “Transfer Agreement”).
8.
In accordance with item 6 of the preamble of the Transfer Agreement, it was stipulated
as follows:
“[The Club] and the Player agree to terminate their current employment relation by mutual
agreement, provided that the Parties fulfil the conditions established in the present
Agreement”.
9.
On 24 January 2022, the Parties mutually terminated the Contract by way of a termination
agreement (hereinafter: the Termination Agreement). In this respect, the Parties submitted
to separate copies of said Agreement, with each claiming that their respective version is
the original. The key provisions of each Termination Agreement are outlined below as
follows (emphasis added):
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Copy submitted by the Club:
“2. Parties mutually and amicably agreed as follows:
a. The Player declare to that he has no any outstanding remuneration on the
date of his Mutual Termination.
b. Consequently the Player hereby declared and accepts that he will not have any
claims from the Club; as compensation, remuneration or in any other name.
c. The Parties are mutually agreed on term, The player will pay 200.000,00 Euros in
compensation to the club on 28th February 2022 due to the premature termination
of the contract.
d. If the player doesn’t pay 200.000,00 Euro within prescribed abovementioned
deadline above, without primal formal notice from Club A, the player shall pay
penalty amounting of 50.000 Euro (fifty thousand) to club.”
Copy submitted by the Player
“2. Parties mutually and amicably agreed as follows:
a. The Player total an amount 215.000,00 (twohundredandfifteenthousand) Euro
net outstanding remuneration on the date of this Mutual Termination.
b. The parties are mutually agreed on term, The player waived(release)
215,000,00 Euro; Consequently the Player hereby declares and accepts that he
will not have any claims from the Club; as compensation, remuneration or in
any other name.
c. The Parties are mutually agreed on term, The player will pay 200.000,00 Euros in
compensation to the club on 28th February 2022 due to the premature termination
of the contract.
d. If the player doesn’t pay 200.000,00 Euro within prescribed abovementioned
deadline above, without primal formal notice from Club A, the player shall pay
penalty amounting of 50.000 Euro (fifty thousand) to club.”
10. On 18 March 2022, the Club put the Player in default for the outstanding amount of
EUR 200,000 and granted a 3-day deadline for the Player to comply with his financial
obligations under the Contract, to no avail.
II. Proceedings before FIFA
11. On 27 May 2022, the Club filed the claim at hand before FIFA.
12. On 4 July 2022, the Player filed a counterclaim against the Club before FIFA.
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13. A brief summary of the position of the Parties is detailed in continuation.
a. Position of the Club
14. The Club filed a claim for overdue payables under art. 12bis of the Regulations on the
Status and Transfer of Players.
15. In this respect, the Club argued that the Player was obligated to make a payment of
EUR 200,000 under the Termination Agreement by no later than 28 February 2022 and
failed to do so, despite having been put in default of said amount on 18 March 2022.
16. Furthermore, the Club argued that, as the Player failed to comply with the terms of the
Termination Agreement, in accordance therewith, it was obligated to pay a penalty of EUR
50,000.
17. Thus, the Club requested payment of the total amount of EUR 250,000, without the
application of interest.
18. Lastly, the Club requested that any procedural or legal costs arising out of the present
proceedings shall be borne by the Player.
b. Counterclaim of the Player
19. The Player firstly argued that the Termination Agreement should be declared null and
void, as the Club allegedly took advantage of the Player’s inexperience in contracting and
the urgency for him to leave and join another club, given the fact that multiple salaries
had remained unpaid and the Club was performing poorly on a sporting level. The Player
also alleged that the Club had repeatedly defaulted on salary payments, alluding to the
default notice sent on 5 April 2021 for three unpaid monthly salaries, further
substantiating the poor relationship between the Parties and he desire for him to leave
the Club.
20. The Player alleged that the Club threatened not to allow the transfer to Club C if he did
not waive his entitlement to the outstanding salaries up to that point. At the same time,
the Player asserted that the Club never mentioned to him that he would have to pay
compensation as a result of the premature termination of the Contract during the
negotiations and lead-up thereto.
21. As a result of the discrepancy between “performance and consideration” of the
Termination Agreement, and the ramifications thereof from a factual perspective, the
Player argued that said Agreement should be declared null and void.
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22. Furthermore, the Player submitted that the Termination Agreement should be declared
null and void because, in accordance with the Swiss Code of Obligations, the right to claim
outstanding remuneration may not be used to the employer’s benefit, and in any case
may not be waived under Swiss law when relating to work already performed. The Player
submitted jurisprudence of both the DRC (cf. FPSD-XXXX) as well as CAS (CAS
XXXX/X/XXXX) that support this position.
23. Subsidiarily, the Player argued that, if the Termination Agreement is held to be valid and
binding, the amount owed to the Club thereunder and the outstanding remuneration to
the Player should be set off against each other, resulting in an amount of EUR 15,000
payable to the Player. In this respect, the Player claimed that the penalty clause of
EUR 50,000 should not be triggered given that the Club was in debt towards him at the
time the Termination Agreement was signed.
c. Club’s response to counterclaim
24. Firstly, the Club argued that the Player applied “intense pressure” in order to move to a
new club, and that he “promised to waive his remaining salaries” and pay compensation
to the Club for the early termination of the Contract in order to leave. The Club, allegedly,
simply complied with the Player’s request and signed the termination agreement
according to the terms proposed by him.
25. Furthermore, to support the assertion that the Player signed the Termination Agreement
of his own free will and under the terms he himself proposed, the Club argued and
submitted evidence to this effect that the Player declared to the Football Federation of
Country A that the signature contained on the Termination Agreement (which copy is
meant in this regard is unclear) is authentic and belongs to him.
26. The Club also accused the Player of fabricating the default notice sent on 5 April 2021,
stating that it never received said notice and stating that if the Player had the chance to
terminate the Contract due to outstanding salaries, he should have done so rather than
contesting the validity of the Termination Agreement.
27. In conclusion, the Club maintained that, in line with the legal principle of pacta sunt
servanda, the Player is obliged to pay the amounts stipulated in the Termination
Agreement.
d. Player’s additional comments
28. The Player was invited to present his comments and any supporting evidence as to the
allegation that the default notice sent on 5 April 2021 was fabricated.
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29. The Player submitted as evidence the e-mail containing the default notice of 5 April 2021,
as well as the read-receipt of the aforementioned notice confirming that the Club received
said documentation.
30. Going beyond the request of the FIFA Administration only to comment on the authenticity
of the default notice, the Player also wished to point out that the Club did not challenge
in its submission the authenticity of the copy of the Termination Agreement submitted by
itself.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
31. 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 27 May 2022 and submitted
for decision on 27 October 2022. 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.
32. 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
Player from Country B and a Club from Country A.
33. 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 (July 2022 edition),
and considering that the present claim was lodged on 27 May 2022, the March 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
34. 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
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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
35. 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
36. 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 validity of the
Termination Agreement, and the respective financial obligations arising therefrom.
37. In this context, the Chamber acknowledged that it its task was to determine whether or
not the Termination Agreement was valid and binding at all, if so, which provisions, if not
all, are enforceable thereunder, and what the financial consequences of this may be for
the Parties.
38. To begin with, the Chamber recalled that the Parties both agree as to the fact that the
Termination Agreement was signed, for the purposes of enabling the Player to depart the
Club in order to join Club C via the Transfer Agreement.
39. Furthermore, both copies of the Termination Agreement stipulate that the Contract shall
be mutually terminated, thus preventing the Player to claim any compensation arising out
of the Contract.
40. In consideration of the fact that these two aspects were undisputed by the Parties, the
Chamber held that the Termination Agreement was, at least, valid and binding to the
extent that it mutually terminated the Contract and that no compensation thereunder
may be claimed. The Chamber, thus, rejected the argumentation submitted by the Player
that the Termination Agreement should be held entirely invalid.
41. Beyond this, the Chamber considered which provisions under the Termination
Agreement should be enforced, in light of the arguments and evidence submitted by each
party.
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42. In this respect, the Chamber firstly recalled the Player’s allegation that the Club took
advantage of him in making him sign the Termination Agreement and agree to not only
waive his outstanding salaries, but also pay an additional amount of EUR 200,000 as
compensation, threatening to otherwise prevent the former’s transfer to Club C.
43. Similarly, the Chamber took note of the Club’s counterargument that the Player “applied
intense pressure” in giving rise to the transfer, so much so that he was prepared to waive
his remaining salaries, as well as to pay a compensatory fee for terminating the Contract
before its term, with the Club only complying with said request and signing the
Termination Agreement under the terms primarily proposed by the Player.
44. Having carefully analysed the respective submissions, the Chamber wished to point out
primarily that the Player provided no evidence of having been coerced into signing the
Termination Agreement or agreeing to the provision holding him liable to pay the Club
the amount of EUR 200,000. Equally, the copy of the Termination Agreement submitted
by the Player matches the copy submitted by the Club, to the extent that they both
stipulate that the Player must pay the Club said amount as compensation for the
premature termination of the employment relationship.
45. Moreover, it was considered relevant by the Chamber that, as the Player signed a valuable
contract following the mutual termination of the Contract, it could arguably be construed
that there was a mutual concession to terminate the employment relationship between
the Club and the Player, and consequently that the Player would undertake to pay an
amount of compensation in order to pursue new employment with Club C.
46. As such, the Chamber established that the provision requiring the Player to pay the Club
the amount of EUR 200,000 shall be considered enforceable, and that the former is held
liable to pay the latter said amount under the Termination Agreement.
47. Furthermore, the Chamber observed that the Player, by disputing which copy of the
Termination Agreement was authentic, argued that he did not waive his right to claim
outstanding remuneration under the Contract. The Chamber also recalled that both
copies of the Termination Agreement stipulate that the Player “accepts not having any
claim as to compensation or remuneration” under the Contract.
48. In this respect, the majority of the Chamber noted that, although the version of the
Termination Agreement submitted by the Club states that the Player recognises not
having any outstanding salaries at the time said Agreement was signed, the Club
subsequently contradicts this position in the proceedings at hand, not only by not
contesting the position submitted by the Player that he did have outstanding amounts,
but indirectly confirming this when stating that the latter applied such “intense pressure”
in order to move to a new club that he was prepared to waive the salaries which were
outstanding at the time the Termination Agreement was signed.
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49. Thus, the majority of the Chamber established that the Player indeed had outstanding
remuneration due under the Contract at the time the Termination Agreement was signed,
in the amount of EUR 215,000, as claimed.
50. Having considered the above, the majority of the Chamber recalled the jurisprudence of
the Court of Arbitration for Sport (CAS), which sets out that the salary for work already
performed cannot be validly waived (cf. CAS XXXX/X/XXXX and XXXX/X/XXXX).
51. In casu, the majority of the Chamber considered that the Player could not have validly
waived his outstanding remuneration, as the remuneration claimed by the Player
concerned a period of time in which the work by the latter had already been performed
– i.e., September 2021 until the date of termination, and that, consequently, the provision
under which the Player purportedly waived his entitlement to said amounts was
unenforceable.
52. Therefore, the majority of the Chamber concluded that the Club shall be held liable for
paying the Player the outstanding remuneration in the amount of EUR 215,000.
53. Having established that the Parties were mutually in debt towards each other, the
majority of the Chamber relied on the general legal principle of “setting off”, which in
essence means that mutual financial obligations may be balanced against each other to
establish the “net position” of debt, and concluded that such “net position” resulted in the
Club owing the Player the total amount of EUR 15,000 (i.e., EUR 215,000 minus
EUR 200,000).
54. Therefore, the majority of the Chamber concluded that, at the point of termination, the
Club was in default towards the Player in the amount of EUR 15,000, and shall be held
liable to pay said amount to the latter.
55. Lastly, the majority of the Chamber considered the application of the penalty clause
under the Termination Agreement, which stipulated that the Player shall be liable to pay
the amount of EUR 50,000 in case he failed to comply with the contractually stipulated
deadline of 28 February 2022, with regards to the amount of EUR 200,000 under the
Termination Agreement.
56. In this respect, the majority of the Chamber reiterated that, at the point the Termination
Agreement had been signed, and similarly, at the point the amount thereunder fell due,
the Club was in default towards the Player on account of the unpaid remuneration which
had fallen due under the Contract.
57. Therefore, in application of the general legal principle of ex turpi causa non oritur actio,
which in essence means that a contractual party may not claim a benefit on the basis of
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its own wrongdoing, the majority of the Chamber concluded that the penalty was not
applicable in the present matter, and therefore rejected this part of the Club’s petition.
ii. Consequences
58. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of the above considerations for each respective party.
59. In this respect, the majority of the Chamber recalled that the “net position” of the Parties,
following the setting off of the mutual debts incurred under the Contract and Termination
Agreement, was EUR 15,000 to the benefit of the Player.
60. Therefore, the majority of the Chamber decided that the Club shall pay the Player
outstanding remuneration of EUR 15,000 in accordance with the Contract.
61. Furthermore, the Chamber noted that the Player had not claimed interest on any
potential amounts awarded in his counterclaim. Thus, and in consonance with the general
legal principle of ne ultra petita, the Chamber decided not to award any interest on the
amount awarded to the Player.
iii. Compliance with monetary decisions
62. 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.
63. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist, in principle, 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.
64. 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.
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65. 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.
66. 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
67. 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.
68. 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.
69. 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/Counter-Respondent, Club A, is rejected.
2.
The counterclaim of the Respondent/Counterclaimant, Player B, is partially accepted.
3.
The Claimant/Counter-Respondent has to pay to the Respondent/Counterclaimant
EUR 15,000 as outstanding remuneration.
4.
Any further claims of the Respondent/Counterclaimant 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
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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
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