Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 24 November 2022
regarding an employment-related dispute concerning the player
A
COMPOSITION:
DE WEGER, Frans (The Netherlands), Chairperson
LUKASEK, Peter (Slovakia), Member
PERLEMUTER, Jerome (France), Member
CLAIMANT:
A, Country A
Represented by
RESPONDENT:
B, Country B
Represented by
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I. Facts of the case
The First Employment Contract (4 August 2015)
1.
On 4 August 2015, the Country A player, Mr A (hereifanafter: the player or the Claimant),
and the Country B club, C (hereinafter: the Old Club) concluded an employment contract
valid as from the date of signature until 3 August 2016 (hereinafter: the First Employment
Contract).
2.
It remained undisputed between the parties that the First Employment Contract was
subsequently renewed, and the player was employed by the Old Club between 2015 and
2020, however no further documentation was submitted by any of the parties in this
respect.
The private agreement in the context of the COVID-19 pandemic (28 July 2020)
3.
On 28 July 2020, the player and the Old Club signed a private agreement allegedly
regarding a reduction of the player’s remuneration from 30 July 2020 until 28 August 2020,
due to the COVID-19 pandemic (hereinafter: the Private Agreement).
4.
Accordingly, the player’s remuneration for the abovementioned period would be reduced
by 25%.
The Second Employment Contract (10 August 2020)
5.
On 10 August 2020, the player and the Old Club concluded a second employment contract
valid as from the date of signature until 9 January 2022 (hereinafter: the Second
Employment Contract).
6.
According to clause 2.1 of the Second Employment Contract, the Old Club undertook to
pay the player a monthly remuneration of Currency country B 150,000, broken down as
follows:
a. Currency country B 75,000 as monthly salary;
b. Currency country B 60,000 as image rights; and
c. Currency country B 15,000 as additional remuneration pursuant to the national
law (i.e. travelling, pre-training, participation in matches, trainings and/or
equivalents).
7.
Clause 11.3 of the Second Employment Contract read as follows: “The Parties, by mutual
agreement and by free expression of their will, expressly elect the venue of the National
Chamber for Dispute Resolution of Football Association Country B (‘xxx) as the only competent
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forum to process and judge any dispute arising exclusively from the present Instrument, to the
detriment of any other forum, however privileged it may be, based on Article 3, item II of the
xxx Regulations”.
The Termination of the First Employment Contract (28 August 2020)
8.
In parallel, on 28 August 2020, the player and the Old Club decided to terminate the First
Employment Contract (hereinafter: the First EC Termination Agreement).
9.
Pursuant to clauses 2.2, 2.3, and 2.4 of the First EC Termination Agreement, the Old Club
acknowledged a debt towards the player amounting to Currency country B 4,244,315.12
(USD 757,919.88). The parties established that said sum would be paid in 36 equal
monthly instalments of USD 21,053.33 net each, starting on 15 June 2021.
10. In addition, the Old Club also undertook to pay to a specific bank account of the player
the total of Currency country B 621,572.22 corresponding to his social security (xxx) for
the months between Abril 2019 and June 2020 (cf. clause 2.5 of the First EC Termination
Agreement).
11. Lastly, clause 4.1 of the First EC Termination Agreement read as follows, in verbis: “The
parties elect the venue of the Dispute Resolution Chamber/FIFA to settle any dispute that may
arise under this contract, whether for collection of fines or fulfilment of obligations, expressly
waiving any other jurisdiction, however privileged it may be”.
Other relevant facts and default notices
12. In December 2021, and following a change in Country B Law authorizing the creation of a
new corporate structure for clubs, the Old Club’s management approved the creation of
a new entity to run the Old Club’s football assets, named B (hereinafter: the New Club or
the Respondent).
13. By letter dated 29 March 2022 and sent on 1 April 2022, the player put both the Old Club
and the New Club in default and requested payment of a total of USD 1,272,875.24 in
connection with the First EC Termination Agreement (USD 767,443 per clause 2.4 plus
USD 121,131.11 per clause 2.5) and the Second Employment Contract (USD 384,302.13).
The player requested the breach to remedied and/or an alternative proposal to be sent
by the counterparties within 10 days, to no avail.
14. On 11 May 2022, the name of the Old Club as included in the Transfer Matching System
(TMS) was updated to the one of the New Club (i.e., B).
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II. Proceedings before FIFA
15. A brief summary of the position of the parties is detailed in continuation.
a. Claim of the player
16. On 6 May 2022, the player filed the claim at hand before FIFA against both the Old Club
and the New Club.
17. In his claim, the player preliminarily clarified that the New Club is in fact the sporting
successor of the Old Club, therefore they are in fact the same entity with different legal
forms and shall be jointly liable to the obligations towards the player.
18. Having established the above, the player argued that – despite complying with all financial
duties – the Old Club failed to deliver a part of his remuneration, as follows:
a. USD 220,056.42 net as the outstanding instalments of the First EC Termination
Agreement;
b. USD 547,386.58 net as the upcoming instalments of the First EC Termination
Agreement (i.e. the anticipation of the debt);
c. USD 121,131.11 net as “security payments” cf. clause 2.5 of the First EC
Termination Agreement;
d. USD 384,302.13 net as outstanding remuneration under the Second
Employment Contract.
19. Furthermore, the player explained that the First Employment Contract was only
terminated in 2020 due to the 5 years’ limitation mentioned in the Country B national law.
As such, he argued that the First EC Termination Agreement and the Second Employment
Contract should be both considered as part of the parties’ employment relationship, thus
entertained together i.e., “as a whole” (principle of unicity).
20. In light of the above, the player referred inter alia to article 12bis of the FIFA Regulations
on the Status and Transfer of Players (RSTP) and requested to be awarded the total sum
of USD 1,272,876.24 net plus 5% interest p.a. as from the respective due dates until the
date of effective payments.
21. Furthermore, the player claimed that the Old Club and the New Club should be ordered
to pay the costs of the proceedings, as well as be sanctioned in line with the regulations.
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b. Information provided by the Football Association Country B (FACB)
22. On 13 May 2022, the FIFA general secretariat requested the FACB information on the
sporting succession involving the Old Club and the New Club, and the status of affiliation
of both clubs.
23. On 17 May 2022, the FACB informed inter alia that: (i) the New Club is the sporting
successor of the Old Club; and (ii) the Old Club was no longer affiliated to FACB.
c. Amendment to the claim by the player
24. On 23 May 2022, the FIFA general secretariat informed the player that the Old Club was
no longer affiliated to FACB. Consequently, and on the basis of art. 9, par. 1, lit. b) of the
Procedural Rules Governing the Football Tribunal in combination with art. 22 of the FIFA
RSTP, the player was invited to amend his petition in that the Football Tribunal did not
have jurisdiction over the Old Club.
25. On 30 May 2022, the player amended his claim and excluded the Old Club as a party to
his claim. His requests for relief were echoed as established in his previous submission –
this time against New Club alone.
d. Reply of the New Club
26. On 30 June 2022, the New Club filed its reply to the player’s claim.
27. Preliminarily, the New Club challenged FIFA’s jurisdiction to enter into the substance of
this matter, and argued that the National Dispute Resolution Chamber of the FACB
(hereinafter: FACB NDRC) bears the exclusive competence to do so in line with clause 11.3
of the Second Employment Contract.
28. In this respect, the New Club stressed that the abovementioned jurisdiction clause is clear
and exclusive, as well as thoroughly explained that the FACB NDRC fulfils the criteria of
FIFA Circular n. 1010 and the FIFA National Dispute Resolution Chamber (NDRC)
Guidelines. In support of its argumentation, the New Club filed a copy of the FACB NDRC’s
regulations of 2021, which accordingly entered into force on 7 August 2020.
29. With the above in mind, the New Club recalled the player’s allegation that the Second
Employment Contract and the First EC Termination Agreement should be entertained
together, hence FIFA lacked jurisdiction to adjudicate on this matter at all.
30. Alternatively, the New Club argued that the player’s claim should be at least partially
inadmissible insofar as it refers to the Second Employment Contract.
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31. On a subsidiary basis, the New Club entered into the substance of the matter. In doing
so, it referred to the principle of venire contra factum proprium and argued as follows, in
verbis: “some of the amounts referred in [the First EC Termination Agreement] come from
part of the monthly salaries of September, October, November and December 2019. Therefore,
[the New Club] considers that it has elapsed a quite significant period of time, so that the Club
could genuinely have reasonable grounds to believe that the Player would not avail himself of
his right anymore”.
32. What is more, the New Club highlighted that the player did only put it in default in April
2022, therefore a significant time after the end of the parties’ contractual relationship (i.e.
January 2022). Consequently, the New Club claimed that – even if the substance of the
claim was to be analysed – the player’s claim should be rejected because “it would
constitute a clear abuse of right to collect any interest on the alleged outstanding amounts
after waiting so long in order to enforce the rights to which the Player considers he is still
entitled”.
33. If the above was not accepted by the FIFA Dispute Resolution Chamber (DRC), the New
Club also challenged the player’s calculations as to the outstanding amounts. It remarked
inter alia the following regarding the outstanding remuneration sought by the player:
As to the First EC Termination Agreement
•
the player shall not be entitled to amounts that are still not due (i.e. upcoming
instalments of the First EC Termination Agreement) because there is no
acceleration clause therein included; and
•
the player’s claim for the social payments mentioned in clause 2.3 of the First EC
Termination Agreement should be dismissed or, alternatively, the amounts shall
be awarded gross and in national currency rather than in United States Dollars.
Furthermore, as there is no date of the payment specified, no interest shall apply.
As to the Second Employment Contract
•
pursuant to clause 2.1 of the Second Employment Contract, the player’s
remuneration was to be paid gross and in national currency;
•
the Old Club / New Club paid the player additional Currency Country B 274,072
there were not included in his calculation; and
•
the remuneration from 30 July 2020 until 28 August 2020 should be reduced by
25% due to the Private Agreement;
•
therefore, any remuneration awarded to the player under the Second Employment
Contract should be limited to Currency Country B 1,673,041.04.
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34. Based on all the abovementioned considerations, the New Club’s prayers for relief were
as follows, quoted verbatim:
“We hereby request this HON. FIFA DISPUTE RESOLUTION CHAMBER OF THE FOOTBALL
TRIBUNAL to deem this ANSWER TO THE CLAIM to be filed on behalf of B, together with
the copies thereof and the documents thereto, and to issue, in due course, a RULING:
A.
Declaring that the Claim of the Player is inadmissible and that this H. FIFA DRC is
not competent to decide on the substance of the current dispute, in line with
Clause 11.3 of [the Second Employment Contract];
B.
Subsidiarily, and in the unlikely event that this H. DRC considered that the labour
relationship which existed between the Parties does not need to be assessed as a
whole in front of the NDRC of the FACB, declaring that any claims arising from the
of [the Second Employment Contract] are inadmissible;
C.
Subsidiarily, and in the unlikely event that this H. DRC decides that he is the
competent body to decide the current matter (in part or as a whole), to fully
dismissing the Claim filed by the Player in application of the legal principles of
Verwirkungand venire contra factum proprium;
D.
Subsidiarily, and in the unlikely event that this H. DRC considered that the Player
is entitled to any of the amounts he claims, the amounts are treated as set out in
para. 39 to 48 above;
E.
In all cases, dismissing the interest claim bearing in mind the delay in the Player
initiating the present proceeding and ordering the Player to pay the legal costs
and all other expenses of these proceedings”.
e. Rejoinder of the player
35. On 22 July 2022, the player submitted his rejoinder on this matter.
36. Firstly, the player pointed out that the New Club had failed to file a translation of the
Private Agreement and the proofs of payment submitted together with its claim.
Therefore, he claimed that those evidence should be disregarded.
37. In parallel, the player also argued that the regulations of the FACB NDRC filed by the New
Club: (i) were outdated; (ii) were not published in XXX in FACB’s official website, therefore
could not be considered as an official edition; and (iii) in any event, have “no relevance
since the eventual jurisdiction of the [FACB NDRC] does not prevent FIFA DRC from
entertaining the matter at hand”. Despite challenging the regulations filed by the New Club,
the player did not provide a copy of the document at its own.
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38. Having established the above, the player moved to the issue of the jurisdiction. In doing
so, he insisted that the FIFA DRC is competent to enter the merits of the case at hand.
39. In this regard, the player pointed out that the First EC Termination Agreement bears a
jurisdiction clause in favour of the FIFA DRC, hence FIFA is clearly competent to rule over
said document. Furthermore, the player highlighted that the First Employment Contract
also provided for the jurisdiction of FIFA, hence the same conclusion shall apply to the
Second Employment Contract bearing in mind the principle of unicity.
40. As to the substance, the player challenged the proofs of payment filed by the New Club
as they were submitted only in language Country B. What is more, he argued that as the
alleged payment was lower than the amount in arrears, the New Club should be liable to
pay “the whole debt undisputed”.
41. Additionally, the player referred to the New Club’s argumentation as to his tacit
acceptance of the debt as “absurd” and stated that it should be set aside.
42. In conclusion, the player reiterated his requests for relief as per his statement of claim
and relevant amendment.
f. Final comments of the New Club
43. On 8 August 2022, the New Club submitted its final comments on this matter.
44. The New Club firstly stressed that language Country B was considered as an official
language in accordance with FIFA Circular n. 1797. In any case and for the sake of
completeness, the New Club filed a translation of the documents concerned into Spanish.
45. In addition, it argued that the regulations of the FACB NDRC filed together with its reply
to the claim were the applicable at the time. Moreover, the New Club pointed out that its
version of the FACB NDRC’s regulation in Spanish was valid and sufficient to guide the
analysis of the case at hand, hence no other translation was needed. Notwithstanding,
the New Club also made reference to the official version in language country B published
in FACB’s website, if needed.
46. Subsequently, the New Club disputed that player’s position as to the jurisdiction of the
FIFA DRC. It reiterated, to this end, that in any event FIFA should be competent to rule
upon claims arising from the Second Employment Contract because of the clear and
exclusive choice of forum added by the parties in clause 11.3 of such document.
47. As to the substance, the New Club confirmed that the payments should be made gross
and in national currency. Moreover, it reiterated its thesis regarding the player’s “passivity”
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to claim to the debt and insisted that the outstanding amount under the Second
Employment Contract should be limited to Currency Country B 1,673,041.04.
48. Lastly, the New Club also echoed its requests for relief per the reply.
III. Considerations of the Dispute Resolution Chamber
a. Admissibility and competence
49. 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 6 May 2022 and submitted
for decision on 24 November 2022. 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.
50. 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, par.
1 lit. b) of the FIFA RSTP (October 2022 edition), the DRC is in principle 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.
51. At this point, the Chamber acknowledged that the player challenged the admissibility of
some documents provided by the New Club together with its reply by alleging that they
were not translated to an official FIFA procedural language (cf. art. 13, par. 3 of the
Procedural Rules).
52. In this respect and following the player’s objection, the DRC also noted that the New Club
subsequently filed the relevant translations together with its final comments. As a result,
the DRC was of the opinion that there was no longer an issue of admissibility and the
assessment of said evidence pertained to the substance of the matter only.
53. Thereafter, the DRC moved to the analysis of the jurisdiction and took due consideration
that the New Club deems that the FACB NDRC should be exclusively competent to rule
upon the merits of the case at hand. On the other hand, the Chamber also considered
that the player disputed such conclusion and deemed that the claim shall be entirely
entertained by the Football Tribunal.
54. In view of the dissent between the parties, the DRC recalled that in accordance with 22
par. 1 lit. b) of the FIFA RSTP, the Chamber is, in principle, competent to hear an
employment-related dispute between a club and a player of an international dimension.
Nevertheless, the parties may explicitly opt in writing for such dispute to be decided by
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an independent arbitration tribunal that has been established at national level within the
framework of the association and/or a collective bargaining agreement. Any such
arbitration clause must be included either directly in the contract or in a collective
bargaining agreement applicable on the parties. The independent national arbitration
tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs (cf. FIFA Circular n. 1010 and FIFA NDRC Standard
Regulations, which came into force on 1 January 2008).
55. With the above in mind, the DRC considered that it should first analyse whether the
contract(s) at the basis of the present dispute contained a clear and exclusive jurisdiction
clause in favour of the FACB NDRC. In doing so, the Chamber noted that the parties
dispute whether the First EC Termination Agreement and the Second Employment
Contract should be entertained together vis-à-vis the particularities of the case and the
specific jurisdiction clauses included in each of the contracts.
56. While analysing wording of the two relevant contracts (i.e. the First EC Termination
Agreement and the Second Employment Contract), the DRC considered that despite being
concluded between the same parties they referred to two different periods and have
completely different objectives: the First EC Termination Agreement provides for the
financial settlement of the parties’ obligations before 2020; whereas the Second
Employment Contract establishes the terms and conditions for the continuity of their
employment relationship as from 2020 and until January 2022. In addition, the DRC was
also observant that neither of these documents referred to each other and/or determined
that it was the parties’ intention for them to be entertained together and/or that the
previous agreements were amended and/or superseded.
57. As a consequence of the above, the DRC decided that the First EC Termination Agreement
and the Second Employment Contract should be assessed separately, bearing their
specific wording in mind and, specifically, their own jurisdiction clauses.
58. Having established the above, the Chamber began with the analysis of the First EC
Termination Agreement and took due consideration that its clause 4.1 clearly refers to
the jurisdiction of the FIFA deciding bodies to solve any dispute in connection thereto,
making no reference to the FACB NDRC, as follows: The parties elect the venue of the
Dispute Resolution Chamber/FIFA to settle any dispute that may arise under this contract,
whether for collection of fines or fulfilment of obligations, expressly waiving any other
jurisdiction, however privileged it may be” (emphasis added).
59. Consequently, the DRC concluded that FIFA unequivocally has jurisdiction to rule upon
this part of the player’s claim and the New Club’s argumentation on the contrary should
be rejected.
60. Subsequently, the DRC moved to the analysis of the Second Employment Contract. In this
respect and as opposed to the abovementioned agreement, the Chamber considered
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that clause 11.3 is in fact clear and exclusive in favour of the FACB NDRC: “The Parties, by
mutual agreement and by free expression of their will, expressly elect the venue of the
National Chamber for Dispute Resolution of FACB (‘xxxx) as the only competent forum to
process and judge any dispute arising exclusively from the present Instrument, to the
detriment of any other forum, however privileged it may be, based on Article 3, item II of
the xxxx Regulations” (emphasis added).
61. In view of the foregoing, the Chamber entered into the analysis of the further prerequisites for establishing the competence of a NDRC. In particular, the DRC recalled the
principle of equal representation of players and clubs and underlined that this principle
is one of the very fundamental elements to be fulfilled, in order for a national dispute
resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in
the FIFA RSTP, in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Standard
Guidelines, which illustrates the aforementioned principle as follows: “The NDRC shall be
composed of the following members, who shall serve a four-year renewable mandate: a) a
chairman and a deputy chairman chosen by consensus by the player and club representatives
(…); b) between three and ten player representatives who are elected or appointed either on
proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist,
on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club
representatives (…).” In this respect, the FIFA Circular no. 1010 states the following: “The
parties must have equal influence over the appointment of arbitrators. This means for example
that every party shall have the right to appoint an arbitrator and the two appointed arbitrators
appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from
a predetermined list, every interest group that is represented must be able to exercise equal
influence over the compilation of the arbitrator list”.
62. With the aforementioned principles in mind, the DRC went on to examine the
documentation advanced by the New Club (i.e., the regulations of the FACB NDRC referred
to as “2021 edition”, which entered into force on 7 August 2020). In doing so, the Chamber
noted that the player challenged the edition of the regulations filed by the New Club
together with its reply, as well as argued that it did not include an official translation into
Spanish. Nevertheless, the DRC took due consideration that (i) the edition of the
regulations provided by the New Club was apparently issued directly in Spanish, i.e., an
official procedural language, hence no translation was needed; and (ii) in any event,
despite challenging the validity of the document, the player failed to provide a most
updated documentation and/or to specify any inconsistency with the translation filed by
the New Club. Therefore, the Chamber deemed that the analysis in the case at hand
should be made in attention to the documentation effectively on file (cf. art. 13, par. 5 of
the Procedural Rules), which means that the DRC undertook the task of examining the
FACB NDRC Regulations, 2021 edition.
At this point, the DRC turned its attention to the cited regulations and noted that it
establishes inter alia the following regarding the composition of the chamber:
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Original in Spanish, as provided by the club:
“Art. 5º - La CNRD está formado por diez miembros, siendo:
I – dos designados por FACB, uno de ellos a quien el ejercicio de la presidencia;
II – dos indicados por los clubes, a través de una entidad sindical nacional o, en
ausencia de esto, por medio de una entidad de clase de ámbito nacional;
III – dos indicados por los atletas, a través de una entidad sindical de alcance nacional
o, en ausencia de esta, por medio de una entidad de clase de alcance nacional;
IV - dos indicados por los intermediarios registrados, a través de una entidad sindical
nacional o, en ausencia de esta, por medio de una entidad de clase de ámbito nacional;
y
V – dos designados por los entrenadores y miembros de una comisión técnica, a través
de una entidad sindical de ámbito nacional o, en ausencia de ello, por medio de una
entidad de clase de ámbito nacional.
§1º - Los casos deben ser juzgados por las siguientes divisiones de la CNRD:
I – La División de Intermediación, encargada de resolver las disputas entre
intermediarios y otros intermediarios, clubes, atletas o miembros del comité técnico;
II – La División Comercial, responsable de resolver las disputas entre clubes;
III – La División de Regulación, responsable de:
a) resolver las disputas a que se refieren los incisos VIII, IX, XII y XIII del Art. 3 del
presente Reglamento;
b) resolver disputas que, debido a litisconsorcio, no puedan ser procesadas ante
las otras divisiones; y
c) resolver los demás litigios no previstos en los apartados anteriores.
§2º – Los miembros designados serán nombrados por el Presidente de la FACB.
§3º- Posteriormente su nombramiento, los miembros firmarán un plazo de
compromiso declarando, en virtud de las sanciones de la ley, que desempeñarán sus
funciones de forma independiente y imparcial, y de conformidad con lo dispuesto en el
presente Reglamento.
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§4º - Los miembros de la CNRD no pueden, bajo ninguna condición, integrar o
desempeñar ninguna función en organismos de la FACB, órganos de gobierno
deportivos afiliados a él, clubes o justicia deportiva de fútbol.
§5º - Los miembros de la CNRD no pueden actuar en procedimientos ante la CNRD,
formal o informalmente, como consultores, patrocinadores de intereses o fiscal general
de ninguna jurisdicción.
§6º - Los miembros de la CNRD están obligados por los deberes de secreto y
confidencialidad previstos en el presente Reglamento, quedando prohibido divulgar a
terceros cualquier hecho o proporcionar información sobre los procedimientos
llevados a cabo ante la CNRD.
§7º - FACB podrá retirar temporal o permanentemente, en cumplimiento del debido
proceso legal, a cualquier miembro de la CNRD que viole cualquier normative del
presente Reglamento o que causa daños a la reputación de la CNRD.
§8º - En caso de muerte, expulsión, renuncia o incapacidad temporal o permanente de
un miembro, la entidad que lo designó nombrará miembro sustituto, que cumplirá el
resto de su mandato.
§9º - La CNRD debe mantener su secretaría, designada por la FACB, para llevar a cabo
los procedimientos procesales y operativos de las controversias que se le presenten.
§10º - Corresponde al Colegio de la CNRD, compuesto por los diez miembros:
I – elegir al vicepresidente de la CNRD;
II – aprobar el reglamento de la CNRD;
III – aprobar las reglas de costos de la CNRD;
IV – para analizar nos casos de impedimento del Presidente de la CNRD, cuando sea
necesario, en forma de Art. 10º, §4.
§11º - La lista de miembros de cada división de la CNRD debe establecerse mediante
acto administrativo de la CNRD, observando lo siguiente:
I – cada división debe tener su propria membresía y miembros sustitutos, para casos
de impedimento o sospecha de cualquier miembro;
II – el Presidente de la CNRD debe formar parte de la División de Reglamento, y solo
podrá participar en deliberaciones de las demás divisiones en casos de impedimento o
sospecha de otro miembro designado por la FACB;
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III – ninguna división puede actuar como un órgano de revisión de otra;
IV – el Colegiado de la CNRD no tiene competencia para revisar las decisiones del
Presidente de la CNRD o de las Divisiones de la CNRD.
§12º - Los detalles de la organización, desempeño y funcionamiento de la CNRD deben
ser disciplinados por regimiento interno.
[...]
Art. 8º - El procedimiento de toma de decisiones de la CNRD observará, como mínimo,
las disposiciones del presente artículo.
§1º - El Presidente de la CNRD distribuirá los procesos para la división de la CNRD con
atribución para juzgarlos, nombrando a un miembro relator para cada caso.
§2º - Las decisiones se tomarán por mayoría simple de votos, y cada miembro tendrá
derecho a un voto, de la siguiente manera:
[...]
II – los casos distribuidos a las Divisiones de Intermediación y Trabajo deben ser
juzgados por tres miembros, y el Jurado de cada caso será formado por uno de los
miembros indicados por la categoría del solicitante, uno de los miembros indicados
por la categoría del demandado y un miembro designado por la FACB”;
Freely translated to English:
“Article 5 - The [FACB NDRC] is composed of ten members, being
I - two appointed by the FACB, one of whom shall exercise the presidency;
II - two appointed by the clubs, by means of a union entity with national coverage, or,
in its absence, by means of a class entity with national coverage;
III - two appointed by the players, by means of a union with national coverage or, in its
absence, by means of a class entity with national coverage;
IV - two appointed by the registered intermediaries, by means of a union with national
coverage or, in its absence, by means of a class entity with national coverage national
scope; and
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V - two appointed by the coaches and members of the technical commission, by means
of a union with national coverage or, in its absence, by means of a class entity with
national coverage.
§1st - The processes are to be judged by the following CNRD divisions
I - the Division on Intermediation, responsible for settling disputes between
intermediaries and other intermediaries, clubs, athletes or technical commission
members;
II - the Labor Division, responsible for settling disputes between clubs and athletes or
members of technical
III - the Commercial Division, responsible for settling disputes between clubs
IV - the Regulatory Division, responsible for
a) settling disputes referred to in items VIII, IX, XII and XIII of art. 3 of these Regulations;
b) to settle disputes that, due to litigation, cannot be processed before the other
divisions; and
c) settle any other disputes not foreseen in the previous items.
§2nd - The appointed members shall be nominated by the FACB President.
§3rd - After their appointment, the members must sign a term of commitment stating
under penalty of the law, that they will perform their duties in an independent and
impartial manner, and in compliance with the compliance with the provisions of these
Regulations.
§4th - The members of the [FACB NDRC] cannot, in any condition, integrate or exercise
any functions in FACB bodies, sports administration entities affiliated to it, clubs, or
football Sports Justice.
§5th - The members of the [FACB NDRC] cannot act in proceedings before the [FACB
NDRC], formally or informally, as consultants, interest sponsors or attorneys of any
jurisdictional parties.
§6th - The members of the [FACB NDRC] are bound by the duties of secrecy and
confidentiality provided for in these Rules, and are forbidden to disclose to third parties
any facts or provide any information information related to the proceedings conducted
before the [FACB NDRC].
Page 16
§7th - FACB may remove, temporarily or permanently, observing due process of law,
any member of the [FACB NDRC] who violates any rules of these Regulations or who
causes damage to the reputation of the [FACB NDRC].
§8th - In case of death, removal, resignation or temporary or permanent incapacity of
a member, the or permanent incapacity of a member, the entity that appointed him/her
shall appoint a substitute member, who will serve the remaining period of the term of
office.
§9th - The [FACB NDRC] shall maintain a Secretariat, appointed by FACB, to conduct
the procedural and operational and operational proceedings of the disputes submitted
to it.
§10th - The College of the [FACB NDRC], composed by the ten members, is in charge of
I - electing the Deputy Chairperson of the [FACB NDRC];
II - approving the internal regulations of the [FACB NDRC];
III - approving the [FACB NDRC]'s costs regulation;
IV - analysing the cases of the [FACB NDRC]’ President's impediment, when necessary,
pursuant to of art. 10, § 4.
§11th - The list of the members of each [FACB NDRC] division shall be established by
means of an administrative act of the [FACB NDRC], observing the following
I - each division shall have its own roster of integrating members and respective
substitutes,
in case of impediment or suspicion of any member;
II - the President of the [FACB NDRC] must be a member of the Regulatory Division, and
will only be able to participate in the deliberations of the other divisions in cases of
impediment or suspicion of any member;
III - no division may act as a reviewing instance of another;
IV - the Collegiate Body of the [FACB NDRC] has no competence to review decisions of
the President of the [FACB NDRC] or of the [FACB NDRC] divisions.
§12th - The details of the organization, performance and functioning of the [FACB
NDRC] shall be regulated by internal bylaws.
Page 17
[...]
Article 8 - The [FACB NDRC]’s decision making procedure shall observe, at least, the
provisions in this article.
§1st - The Chairperson of the [FACB NDRC] shall distribute the proceedings to the [FACB
NDRC]'s division with attribution to judge them, appointing a rapporteur member for
each case.
§2nd - Decisions shall be taken by simple majority vote, each member having the right
to one vote, observing the following to one vote, observing the following
[...]
II - the cases distributed to the Divisions on Intermediation and Labor should be judged
by three members, with the judging panel for each case composed of one of the
members indicated by the claimant’s category, one member indicated by the
respondent’s category, and one member indicated by FACB [...]”.
63. While carefully analysing the above, the DRC found it decisive that the cited art. 5
establishes that the FACB NDRC is composed of 10 members, being inter alia two of them
nominated by the FACB, two of them indicated by the clubs, and two of them indicated
by the players. Taking this composition into consideration in combination with the other
provisions of the FACB NDRC regulations (2021 edition), the Chamber was not convinced
that the principle of equal representation mentioned in the FIFA NDRC Regulations and
FIFA Circular no. 1010 is fulfilled because:
•
the combined number of members nominated by the FACB and the clubs (4) is
higher than the number of the members nominated by the players (2);
•
according to art. 3 of the FIFA NDRC Regulations, the NDRC shall be composed
inter alia of “a chairman and a deputy chairman chosen by consensus by the player
and club representatives from a list of at least five persons drawn up by the
association’s executive committee”. Nevertheless, under the FACB NDRC regulations
there is no requirement of consensus for the indications by the FACB casting
doubt on the equal influence of such choice. In particular, the DRC established
that in case of an employment-related dispute being decided by three members
(i.e., one appointed by the players, one by the club and the third one appointed
by FACB), the principle of equal representation would still not be duly fulfilled due
to the lack of equal influence on the nomination of FACB’s judge; and
•
along the same lines and despite the regulations establishing that the deputy
chairperson of the FACB NDRC should be decided by the other members of the
said body, there is also no specific rule concerning the equal influence of the
Page 18
players and the clubs to nominate its chairperson. On the contrary, the
regulations only stipulate that the chairperson should be indicated by the FACB
and be a member of its Regulatory Division, which cannot be deemed as an
unequivocal proof that such nomination respects the principle of parity between
clubs and players.
•
The information on the file did not establish in any degree the affiliation of players,
or their union, to the FACB as members, while it remained clear that the local
(state) governing bodies of football in Country B are members of the FACB (e.g.,
the Football Federation of the State of xx, the Football Federation of the State of
xx, the Football Federation of the State of xx, etc.), and that the clubs also have a
voting right. Thus, the DRC confirmed that there seems to be an imbalance
between the players’ representation and the clubs’ influence in the composition
on the FACB NDRC.
64. Having the abovementioned considerations in mind together with the fact that no
convincing explanation in this regard was provided by the New Club, the DRC concluded
that it could not establish to a comfortable satisfaction degree that the requirements
prescribed in the FIFA Circular n. 1010 and the FIFA NDRC Regulations are met in the case
at hand (cf. art. 13, par. 5 of the Procedural Rules).
65. It followed from the above that the FIFA DRC has also jurisdiction to rule upon the player’s
claim referring to the Second Employment Contract on the basis of art. 22, par. 1, lit. b) of
the FIFA RSTP.
b. Applicable legal framework
66. 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 FIFA RSTP (October 2022 edition), and considering that the present claim
was lodged on 6 May 2022, the March 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
c. Burden of proof
67. 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 TMS.
d. Merits of the dispute
Page 19
68. 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
69. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is claim for outstanding remuneration in
connection to the First EC Termination Agreement and the Second Employment Contract
concluded between the player and the Old Club.
70. As a departure point, the DRC established that the sporting succession between the Old
Club and the New Club was confirmed by the FACB, implemented in the TMS, and is not
disputed by the parties. The DRC equally noted that the New Club;
- Has almost an identical name as that of the Old Club;
- Shares the history with the Old Club, as per their websites;
- Uses the same stadium as the Old Club;
- Uses uniform with the same colours as of the Old Club; and
- Uses the same logo as the Old Club.
71. Consequently, and in line with the well-established jurisprudence of the FIFA Football
Tribunal on the topic, the Chamber confirmed that the New Club is indeed the sporting
successor of Old Club, hence it shall be liable to comply with any potential financial
obligation pending towards the player in connection to this claim.
72. Having established the above, the Chamber acknowledged that the player claims to be
entitled to an overall amount of USD 1,272,876.24 net plus interests. The New Club, on
the hand, argues that (i) the player’s claim should be dismissed because of his inertia to
pursue the debt (venire contra factum proprium); or, alternatively, (ii) the quantum
requested by the player was excessive bearing in mind the wording of the contracts and
extra payments not considered in the calculations.
73. Against this background, the DRC turned to parties’ submissions and documentation on
file in order to assess their position as to the behaviour of the player and his alleged
“passivity” and/or “tacit consent” (akin acceptance) of the New Club’s debt.
74. In this respect, the Chamber found it essential that there was not any evidence on file
capable of suggesting that the player has ever accepted the non-compliance by the New
Club of its financial duties (neither regarding the First EC Termination Agreement nor the
Second Employment Contract). On the contrary, the DRC noted that the parties engaged
Page 20
in good faith negotiations and, as a result, the player agreed to reduce part of its
remuneration via the Private Agreement, but no waiver or amendment was made
regarding the other outstanding amounts. Furthermore, the New Club did not advance
any evidence capable of corroborating its argumentation as to the player’s inertia, and
the timeline of the case was not conclusive to this extent, especially because the player (i)
remained employed by the Old Club / New Club until 2022; (ii) put the New Club in default
to no avail; and (ii) filed his claim within the 2 years’ deadline set out in art. 23, par. 3 of
the Regulations.
75. Taking the above into consideration, the DRC considered that the New Club could not
establish to a comfortable satisfaction degree that the player has ever adopted a
controversial behaviour towards it (cf. art. 13, par. 5 of the Procedural Rules). As such, the
Chamber was firm to determined that the New Club’s position in this respect should be
set aside.
76. On this note, the DRC turned to the analysis of the quantum owed by the New Club to the
player, starting with the First EC Termination Agreement and then moving to the Second
Employment Contract.
First EC Termination Agreement
77. In this respect, the DRC noted that it remained undisputed that no amount was ever paid
by the New Club (or the Old Club) to the player under the First EC Termination Agreement.
Therefore, and on the basis of the general legal principle of pacta sunt servanda, the
Chamber decided that he should be entitled to the amounts that fell due until the date of
the decision by the Chamber, as follows:
a. USD 378,959.94 net corresponding to the instalments mentioned in clause 2.4,
from June until November 2022 (i.e. USD 21,053.33 each), plus default interest
of 5% p.a. as from the respective due dates until the date of effective payment;
b. Currency Country B 621,572.22 corresponding to the social contributions in
arrears mentioned in clause 2.5, plus default interest of 5% p.a. as from the date
of the claim (because not specified in the relevant contract) until the date of
effective payment.
78. The Chamber equally pointed out that the abovementioned amounts should be awarded
as contractually agreed, namely: for (a) in USD and net; and for (b) in Currency Country B.
79. Lastly, the Chamber established that the player’s claim for the upcoming instalments of
the First EC Termination Agreement is premature insofar as there is no acceleration
clause included in such contract. Consequently, this part of the claim could not be
Page 21
awarded, and the Chamber pointed out that the player would only be entitled to claim
any future amount in due course.
Second Employment Contract
80. The player moreover claimed to be entitled to Currency Country B 1,984,613.04 net (i.e.,
USD 384,302.13 net) as outstanding remuneration under the Second Employment
Contract. To support his allegations, the player filed copies of several calculations that
include salaries, image rights, social contributions, taxes, and additional expenses.
81. In contrast, the New Club challenged the sum requested by the player and filed copies of
additional payments that were not taken into consideration, as well as the Private
Agreement and the loan agreement. As such, the New Club acknowledged a debt of
Currency Country B 1,673,041.04 towards the player.
82. While facing the argumentations of the New Club, the player did not dispute the receipt
of the additional payments nor the signature of the loan agreement and the Private
Agreement. Furthermore, the player did not specifically oppose to the quantum indicated
by the New Club in his reply.
83. Because of the above and by considering that the documentation provided by the player
is not precisely specified nor substantiated, the DRC decided that he should be awarded
the unchallenged amount of Currency Country B 1,673,041.04.
84. Furthermore, bearing in mind that the player did also not specify his request for interest
and the due dates could not be all established from documentation on file, the Chamber
established that the default interest of 5% p.a. should arise over entire debt as from the
date of the claim (i.e., 6 May 2022) until the date of effective payment.
85. In conclusion, the DRC decided that the claim of the player be admissible and partially
accepted.
ii. Article 12bis of the Regulations
86. Having established the above, the DRC referred to art.12bis par. 2 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.
87. To this end and conversely to the New Club’s argumentation, the DRC confirmed that the
player put it in default of payment of the amounts sought, which had fallen due for more
than 30 days, and granted the New Club with 10 days to cure such breach of contract.
Page 22
88. Accordingly, the DRC confirmed that a due payment was delayed without a prima facia
contractual basis. It followed that the criteria enshrined in art. 12bis of the Regulations
was met in the case at hand.
89. The DRC further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the New Club. On account of the above and bearing
in mind that this is the second offense by the New Club within the last two years, the DRC
decided to impose a reprimand on the New Club in accordance with art. 12bis par. 4 lit.
b) of the Regulations.
90. In this connection, the DRC highlighted that a repeated offence will be considered as an
aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
iii. Compliance with monetary decisions
91. 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.
92. 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.
93. 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.
94. 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.
95. 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.
Page 23
e. Costs
96. 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.
97. 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.
98. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 24
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, A.
2.
The Respondent, B, is the sporting successor of C.
3.
The claim of the Claimant is partially accepted.
4.
The Respondent has to pay to the Claimant the following amounts:
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16 June
2021 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16 July
2021 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
August 2021 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
September 2021 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
October 2021 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
November 2021 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
December 2021 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
January 2022 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
February 2022 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16 March
2022 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16 April
2022 until the date of effective payment;
Page 25
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16 May
2022 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16 June
2022 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16 July
2022 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
August 2022 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
September 2022 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
October 2022 until the date of effective payment;
-
USD 21,053.33 net as outstanding remuneration plus 5% interest p.a. as from 16
November 2022 until the date of effective payment;
-
Currency Country B 1,673,041.04 as outstanding remuneration plus 5% interest p.a. as
from 6 May 2022 until the date of effective payment; and
-
Currency Country B 621,572.22 as outstanding remuneration plus 5% interest p.a. as
from 6 May 2022 until the date of effective payment.
5.
The claim of the Claimant for amounts arising out of the termination agreement executed
by and between the parties on 28 August 2020 which fall due after 24 November 2022 is
premature.
6.
Any further claims of the Claimant are rejected.
7.
A reprimand is imposed on the Respondent.
8.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
9.
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:
Page 26
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.
10. 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.
11. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 27
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
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