Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 9 December 2021
regarding an employment-related dispute concerning the player A
BY:
Omar ONGARO (Italy), Deputy Chairperson
Mario FLORES CHEMOR (México), member
Khadija TIMERA (Senegal), member
CLAIMANT:
A, Country A
RESPONDENT:
B, Country B
I. Facts
1. On 1 January 2020, the player A and B concluded and employment contract valid as from the date
of signature until 31 December 2022 for a monthly salary of EUR 600,000 net.
2. On 28 July 2021, the parties concluded a termination agreement with the following conditions:
Party A: B (…)
Party B: A (…)
(…) Due to global COVID-19 pandemic, the Parties find It hard to undertake contractual obligations
to each other. In this respect, after amicable negotlations on an equal basis, Party A and Party B
agree to terminate the Employment Contract and therefore reached the following agreement:
1. Party A and Party B agree that the Employment Contract shall be terminated on 30 June 2021.
2 - “[Party A] shall pay or entrust the third party to pay [Party Br]
remaining salaries in the total amount of EUR 10,000,000 (ten million euros) net, which shall be paid
in the following instalments directly to the bank account specified by [the Player] (that may be a
national or foreign bank account):
EUR 1,000,000.00 (one million Euros) net until 30 August 2021;
EUR 1,000,000.00 (one million Euros) net until 30 September 2021;
EUR 1,000,000.00 (one million Euros) net until 30 October 2021;
EUR 1,000,000.00 (one million Euros) net until 30 November 2021;
EUR 1,000,000.00 (one million Euros) net until 30 December 2021;
EUR 1,000,000.00 (one million Euros) net until 30 February 2021;
EUR 1,000,000.00 (one million Euros) net until 30 March 2022;
EUR 1,000,000.00 (one million Euros) net until 30 April 2022;
EUR 1,000,000.00 (one million Euros) net until 30 May 2022;”
(…)
4 - Party A and Party B acknowledge and confirm that, there ls no dispute between the Parties during
the term of the Employment Contract. After the signing & of this Agreement and the payment of
salaries provided In Article 2 above, Party B shall not request Party A to pay any remuneration, fee,
damage, compensation over the performance or termination of the Employment Contract.
(…)
9. The Parties agree that a faxed or email (.pdf} copy of the present Agreement duly signed by the
Parties shall be considered as valid and binding.
3. On 11 August 2021, the player sent his bank details to the club.
4. On 1 September 2021, the club sent an email confirming that the information will be transmitted
to the finance department.
5. On 4 September 2021, the player sent a default notice for the amount due on 30 August 2021,
granting ten days to remedy the default.
6. On 13 September 2021, A lodged a claim before FIFA for outstanding remuneration and requested
the payment of EUR 1,000,000, corresponding to the first instalment of the termination agreement,
plus 5% interest p.a. as from the due dates.
7. The club replied to the claim and simultaneously lodged a counterclaim.
8. In this respect, the club requested “to order the Player to pay the Club a fine in the amount of EUR
11,160,000 plus interest at a rate of 5% per annum.”
9. The club made reference to the context of the financial challenged due to the COVID-19 pandemic.
10. According to the club, the player was granted with extended holidays until 24 January 2021, but
explained that he failed to return to Country B.
11. The club argued that in pursuit of unjustified compensation, “as experienced and cunning lawyers,
the Player’s representatives manipulated negotiations with the staff of the Club, who are lack of
legal knowledge over this matter, and misled them to a serious misunderstanding that, to avoid
disciplinary sanctions, they should release the Player at whatever costs.”
12. The club therefore acknowledged that it concluded the termination agreement “under great
pressure”.
13. In his replica, the player denied the facts as presented by the club.
14. The player explained that, without communicating to the Player, the Club stopped paying his
salaries, having defaulted the payment of the entire salaries of January, February, March, April, May
and June 2021.
15. The player underlined that, on 29 July 2021, the Club sent the Termination Agreement signed and
stamped by the Club´s Chief Executive Officer, Mr. X, and therefore, the agreement entered into
force.
16. The player insisted that it is groundless to discuss the development of the employment relationship,
since the termination agreement supersedes any prior negotiation.
17. The player considered that the club is contradicting itself, and thus incurred in breach of the
principle of “venire contra factum proprium”.
18. The player further stated that the club is “one of the biggest clubs in Country B and have in its staff
extremely competent and experienced professionals, which are used to deal with multi-millionaires
contracts and complex negotiations every day.”
19. Alternatively, and in the event that the DRC would not consider the terms of the termination
agreement, the player requested the following:
a) Hold the Club liable for breaching articles 12bis and article 17, par. 1 of the FIFA RSTP in light of
its unjustified and repeated breaches of contract;
b) Order the Club to pay the Player outstanding remuneration in the total amount of
EUR3,600,000,00 (…) net;
c) Order the Club to compensate the Player in the total amount of EUR10,800,000.00 (…) net as
remuneration until the end of the Player’s employment contract with the Club;
20. As final comments, the club insisted in its previous arguments.
21. On 11 October 2021, the Claimant sent a correspondence mentioning that, in the meantime, the
third instalment, due on 30 September 2021, fell due.
22. On 11 November 2021, the Claimant sent a correspondence mentioning that, in the meantime, the
third instalment, due on 30 October 2021, fell due.
II.
Considerations of the Dispute Resolution Chamber
a.
Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. Taking into account the wording
of art. 34 of the October 2021 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable
to the matter at hand.
2.
Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) 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
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension, between a Country A player and a Country B club.
3.
Subsequently, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (August 2021 edition), and considering the date
when the present claim was lodged, the August 2021 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b.
4.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the
Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4
of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties,
including without limitation the evidence generated by or within the Transfer Matching System
(TMS).
c.
5.
Burden of proof
Merits of the dispute
Its competence and the applicable regulations having been established, the Chamber / entered into
the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. However, the Chamber
emphasised that in the following considerations it will refer only to the facts, arguments and
documentary evidence, which it considered pertinent for the assessment of the matter at hand.
i.
Main legal discussion and considerations
6.
In this respect, the Chamber noted that the Claimant lodged a claim against the Respondent for
outstanding remuneration on the basis of a termination agreement concluded between the parties
on 28 July 2021, with the conditions quoted in point II 2 above.
7.
On the other hand, the Chamber took note of the position of the Respondent, according to which
the termination agreement was signed “under great pressure”.
8.
In relation to said argument, the Chamber carefully examined the documentation provided by the
parties during the course of the investigation, and noted that the Respondent failed to provide any
evidence of possible “duress” in the signature of the agreement. Moreover, given the economic
value of said agreement, the Chamber understood that, in any case, the Respondent had a duty of
due diligence while signing said agreement.
9.
In view of the above, the Chamber dismissed the Respondent’s argument in this respect. In
addition, the Chamber noted that the club did not prove to have paid the claimed amounts.
10. Consequently, the Chamber established that the presently due instalments are as follows:
EUR 1,000,000 net until 30 August 2021;
EUR 1,000,000 net until 30 September 2021;
EUR 1,000,000 net until 30 October 2021;
EUR 1,000,000 net until 30 November 2021;
11. Consequently, in strict application of the principle of pacta sunt servanda, the Single Judge of the
PSC established that the Respondent has to pay to the Claimant, the total outstanding amount of
EUR 4,000,000, as established above.
12. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Chamber decided to award 5% interest p.a. over said amount as
from the due dates.
ii.
Compliance with monetary decisions
13. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 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.
14. In this regard, the Chamber 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.
15. Therefore, bearing in mind the above, the Chamber decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the decision,
failing which, at the request of the creditor, 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 club in accordance with art. 24 par. 2, 4, and 7
of the Regulations.
16. The Chamber 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.
17. The Chamber then 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.
18. 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.
19. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is accepted.
2.
The Respondent, B, has to pay to the Claimant, the amount of EUR 4,000,000 net, plus interest
as follows:
- 5% interest over the amount of EUR 1,000,000 as from 31 August 2021 until the date of effective payment;
- 5% interest over the amount of EUR 1,000,000 as from 1 October 2021 until the date of effective payment;
- 5% interest over the amount of EUR 1,000,000 as from 31 October 2021 until the date of effective payment;
- 5% interest over the amount of EUR 1,000,000 as from 1 December 2021 until the date of effective payment;
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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