Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 6 December 2023
regarding an employment-related dispute concerning
the player A
BY:
Calum Beattie (Scotland)
CLAIMANT:
A, Country A
Represented by
RESPONDENT:
B, Country B
pg. 2
I. Facts of the case
1.
On 22 June 2021, the Country A player A (hereinafter: Claimant or player) and the Country
B club B (hereinafter: club or Respondent) concluded an employment contract valid as from
the date of signature until 30 June 2024.
2.
On 10 July 2023, the Claimant and the Respondent signed a mutual termination agreement
(hereinafter: the Agreement) in accordance with which they decided to amicably terminate
the aforementioned contract.
3.
In accordance with art. 2(3) of the Agreement, the Respondent agreed to pay the Claimant
the following payments:
-
4.
Furthermore, pursuant to the same provision under the Agreement, the parties agreed
that upon late payment of any of the abovementioned amounts, the following would apply:
-
5.
EUR 10,500 by no later than 10 July 2023;
EUR 11,500 by no later than 10 August 2023.
Entire outstanding amount becomes due immediately (acceleration clause);
Interest rate of 7.5% p.a. on the outstanding amounts;
Liquidated penalty of EUR 5,000.
Moreover, art. 2(5) of the Agreement stated as follows:
“The Player is obliged to return to the Club all Club property, including sports equipment, which may be
in the possession of the Player within 3 days of the Agreement coming into force. In the event of nonfulfilment of the obligation specified in the previous sentence, the Club will be entitled to apply
appropriate deductions to the payments specified in sec. 3-4above, provided that the Player has been
previously requested to return certain Club property by giving him at least 3 days' notice.”
6.
On 27 July 2023, the Respondent’s kitman informed the accounting department of the club
that the Claimant had not returned various items of sports equipment, providing a list of
the items in question.
7.
On 5 October 2023, the Claimant put the Respondent in default and requested payment of
EUR 11,500 plus interest of 7.5% p.a. as well as a penalty of EUR 5,000 within 7 days.
8.
On 13 November 2023, the Respondent sent a letter to the Claimant summoning the latter
to return all club property within three days.
pg. 3
II. Proceedings before FIFA
9.
On 17 October 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
10. In his claim, the player argued that the Respondent failed to make the due payments under
the Agreement, namely EUR 22,000.
11. The Claimant also asserted that he is entitled to an interest rate of 7.5% p.a. as per the
Agreement, and a contractual penalty of EUR 5,000.
12. The Claimant emphasised that both the agreed interest rate, as well as the liquidated
damages clause of EUR 5,000 were entirely proportionate and foreseeable, in line with the
jurisprudence of the Football Tribunal.
13. Thus, the Claimant requested that, in accordance with pacta sunt servanda, he be awarded
EUR 22,000 plus 7.5% p.a. interest per annum, and a contractual penalty of EUR 5,000.
b. Position of the Respondent
14. In its reply, the Respondent acknowledged having withheld the abovementioned amounts,
asserted, however, that it had a valid justification for doing so.
15. The Respondent outlined that, pursuant to art. 2(5) of the Agreement, the Claimant had to
purportedly first return all club property to the Respondent before being entitled to receive
the payments thereunder.
16. The Respondent argued that the Claimant had substantially breached the Agreement by
failing to return the property, in the total value of EUR 209 and comprised mainly of training
clothes. The Respondent provided a list with exact pricing of the missing items.
17. The Respondent outlined that, in an attempt to act in good faith with the Claimant, did not
formally request him to return the items so as not to have to deduct them unilaterally from
the outstanding amounts owed to him. The Respondent emphasised that it wished to act
amicably with the Claimant.
18. Thus, the Respondent outlined that, in any case, the claim should be rejected, or, if at least
partially accepted, that the contractual penalty should not apply and that the Claimant shall
only be entitled to receive the principal overdue amount.
pg. 4
c. Unsolicited Correspondence from the Claimant
19. The Claimant provided an unsolicited correspondence in which he outlined that he
returned all items (providing no evidence to this effect, however) long before the
Agreement was signed.
20. The Claimant also shortly outlined that the Respondent made no mention of the disputed
items until 13 November 2023, thus corroborating his point that they had not been missing.
21. The Claimant, thus, insisted on his request for relief.
pg. 5
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on
17 October 2023 and submitted for decision on 6 December 2023. Taking into account the
wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football
Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
23. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (May 2023 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Country A player
and a Country B club.
24. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition),
and considering that the present claim was lodged on 17 October 2023, the May 2023
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
25. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
26. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Single Judge emphasised that in the following considerations he will refer only to the
facts, arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
pg. 6
i. Main legal discussion and considerations
27. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the payment of certain
financial obligations.
28. In this context, the Single Judge acknowledged that his task was to determine whether or
not the Respondent had a valid justification for defaulting on the disputed amounts; it was
recalled, at this stage, that the non-payment of the aforementioned amounts remained
undisputed.
29. At this stage, the Single Judge recalled the submissions of the parties, starting with the
Claimant, who argued that the Respondent had no justification to default on the above
amounts, and requested the principal amount of EUR 22,000 as well as the contractually
agreed interest rate and penalty clause.
30. On the other hand, the Single Judge took note of the Respondent’s submission, who
asserted that it was entitled to withhold the above amounts due to the fact that the
Claimant failed to return club property – clothing items in the value of EUR 209.
31. Having outlined the above, the Single Judge wished to reiterate the wording of art. 13
par. 5 Procedural Rules, according to which a party that asserts a certain fact also bears
the burden of proving its veracity.
32. With this established, the Single Judge went on to analyse the matter as to its merits, and
deemed it important to address art. 2(5) of the Agreement, which stated as follows:
“The Player is obliged to return to the Club all Club property, including sports equipment, which may be
in the possession of the Player within 3 days of the Agreement coming into force. In the event of nonfulfilment of the obligation specified in the previous sentence, the Club will be entitled to apply
appropriate deductions to the payments specified in sec. 3-4above, provided that the Player has been
previously requested to return certain Club property by giving him at least 3 days' notice.
33. In application of said provision, the Single Judge opined that the payment of the principal
amount of EUR 22,000 was not conditional upon the returning of the aforementioned club
property. Although the Claimant had an obligation to return the items to the club, this was
not a condition for the payment to occur.
34. The Single Judge wished to hereby emphasise that the date of payment for the first
instalment of EUR 10,500 preceded the due date for returning the items, which further
underpinned said conclusion.
35. Beyond this, the Single Judge noted that the Respondent was obligated by virtue of the
same provision to send the player a formal warning to return the above amounts, before
pg. 7
being able to unilaterally deduct those same amounts from the sum of EUR 22,000
(“provided that the Player has been previously requested to return certain club property by
giving him at least 3 days’ notice”) – which the latter only did following the lodging of the
present claim.
36. On the other hand, the Single Judge did not fail to observe that the Claimant, though
arguing that he did return the items, provided no evidence of having done so. The Single
Judge considered that, had the items been returned – as claimed – the Agreement would
not have contained a clause to return them in the first place.
37. Notwithstanding this, and overall, the Single Judge deemed that the obligation to pay the
principal amount of EUR 22,000 could not be withheld in the absence of a return of the
disputed items; that is, given the wording of art. 2(5) of the Agreement, the Respondent
could not invoke the application of the principle exceptio non adimpleti contractus in the
case at hand.
38. Therefore, the Single Judge concluded that the Respondent had unlawfully been in default
of its financial obligations towards the Claimant.
39. Having stated this, the Single Judge turned to the consequences of said unlawful breach of
contract by the Respondent.
40. The Single Judge firstly concluded that the Respondent is liable to pay the Claimant the
principal sum of EUR 22,000, minus the value of the unreturned items of EUR 209, resulting
in an outstanding amount of EUR 21,791.
41. Furthermore, the Single Judge analysed the application of the contractual interest rate of
7.5% p.a. and the contractual penalty clause of EUR 5,000. As a preliminary remark, and by
the same token as the payment of the principal amount, the Respondent’s default had
already occurred before the foreseen date of return of the items in the Agreement, as a
result of which the provisions were applicable.
42. In terms of the interest rate, the Single Judge deemed that this was well within the bounds
of proportionality, in line with the jurisprudence of the Football Tribunal, which has
frequently recognised contractually stipulated interest rates of up to 18% p.a..
43. Consequently, the Single Judge established that the abovementioned interest rate of 7.5%
p.a. was applicable as to the outstanding remuneration to be awarded in the present
matter.
44. As for the liquidated damages clause, the Single Judge considered it to be equally valid and
reasonable, considering that it amounted to a proportion of around 22% of the principal
amount that had remained outstanding.
pg. 8
45. The Single Judge wished to recall the principle of ne bis in idem at this stage, in line with
which the former decided that no interest was applicable on the contractual penalty of
EUR 5,000, so as not to result in a double jeopardy.
46. Thus, and in conclusion, the Single Judge decided that the Respondent must pay the
Claimant an outstanding amount of EUR 21,791, plus interest of 7.5% per annum as from
11 July 2023 until the date of effective payment, and a contractual penalty of EUR 5,000.
ii. Compliance with monetary decisions
47. Finally, taking into account the applicable Regulations, the Single Judge 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.
48. In this regard, the Single Judge 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.
49. Therefore, bearing in mind the above, the Single Judge 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.
50. 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.
51. The Single Judge 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
52. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
pg. 9
53. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
54. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 10
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, B, must pay to the Claimant the following amount(s):
- EUR 21,791 as outstanding remuneration plus 7.5% interest p.a. as from 11 July 2023
until the date of effective payment;
- EUR 5,000 as contractual penalty.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12