Labour Disputes
Texto da decisão
REF FPSD-4208
Decision of the
Dispute Resolution Chamber
passed on 10 December 2021
regarding an employment-related dispute concerning the player Diogo
Emanuel Alves Ramos
BY:
Roy Vermeer, the Netherlands
CLAIMANT:
Diogo Emanuel Alves Ramos, Portugal
Represented by José Duarte Reis
RESPONDENT:
Onisilos Sotiras 2014, Cyprus
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REF FPSD-4208
I.
Facts of the case
1.
On 8 July 2020, the Portuguese player, Mr Diogo Emanuel Alves Ramos (hereinafter: the
player or the Claimant), and the Cypriot club, Onisilos Sotiras 2014 (hereinafter: the club or
the Respondent) signed a document titled “employment agreement” valid as from 1 August
2020 until 31 May 2021 (hereinafter: the employment agreement).
2.
In accordance with the employment agreement, the club undertook to pay the player a
monthly remuneration of EUR 300 net.
3.
Moreover, under the employment agreement: (i) clause 1.5 established that the Standard
Employment Contract approved by the Cyprus Football Association (CFA) constituted an
integral part of the agreement; and (ii) clause 1.7 established that the parties could insert
additional employment terms provided that they were mutually agreed upon and were not
in conflict with the cited Standard Employment Contract.
4.
On 20 July 2020, the player and the club signed a document titled “contract of employment”
and valid for the same period (i.e. as from 1 August 2020 until 31 May 202) (hereinafter: the
contract of employment).
5.
In accordance with the annex to the contract of employment, titled “specific conditions”,
the club undertook to pay the player, inter alia, the following amounts:
a. EUR 5,000 as sign-on fee; and
b. EUR 27,000 net under the concept of “emoluments”, payable in 10 equal monthly
instalments of EUR 2,700 each.
6.
On 11 January 2021, the player and the club concluded a side agreement establishing the
following, in quoted verbatim:
“[The club] is obligated to pay the amount of 5000 EURO in bonuses to [the player] (passport
number M693158) by the date of 30/4/2021. The money can be given in instalments or all
at once, but the latest by the date of 30/4/2021”.
7.
On 16 May 2021, the player and the club signed a termination agreement in connection to
the employment relationship previously initiated between them (hereinafter: the termination
agreement).
8.
The preamble of the termination agreement expressly mentioned that it “form[ed] an integral
part of the cooperation agreement signed on 08/07/2020 at SOTIRA between [the club] and
the player […]”.
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9.
Clause 1 of the termination agreement read as follows: “the two parties herewith agree that
the cooperation agreement for the period from 01/08/2020 to 31/05/2021 signed on
08/07/2020 at SOTIRA between [the club] and the player is terminated by mutual consent by
signing this”.
10. On 17 May 2021, the player and the club signed a document titled “payment agreement”
(hereinafter: the payment agreement).
11. Accordingly, the club undertook to pay the player the total amount of EUR 9,000 in
connection with their previous employment relationship, as follows:
a.
b.
c.
d.
EUR 2,500 on 10 June 2021;
EUR 2,500 on 10 July 2021;
EUR 2,000 on 10 August 2021; and
EUR 2,000 on 10 September 2021.
12. On 17 June 2021, the player put the club in default and granted it with a 10 days’ deadline
in order to proceed the payment of EUR 5,000 corresponding to the bonus mentioned in the
side agreement of 11 January 2021, plus the first instalment of the payment agreement
amounting to EUR 2,500.
13. On 13 July 2021, the player sent the club a second notice requesting the abovementioned
bonus, as well as the first and the second instalments of the payment agreement.
II. Proceedings before FIFA
14. On 5 November 2021, the player filed the claim at hand before FIFA for outstanding
remuneration amounting to EUR 14,000, broken down as follows:
a. EUR 5,000 as the bonus due under the side agreement concluded between the
parties on 11 January 2021; and
b. EUR 9,000 as the full amount due by the club under the payment agreement
concluded between the parties on 17 May 2021.
15. Furthermore, the player claimed interest of 5% p.a. as from the due dates until full payment.
16. In its reply, the club referred to the content of the termination agreement and mentioned
that it was “the last document signed between the two parties”. In doing so, the club stated
that “no amount is owed by the club to the player”.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 5 November 2021
and submitted for decision on 10 December 2021. 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.
18. 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 (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 Portuguese player and a Cypriot club.
19. 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 (August 2021 edition), and
considering that the present claim was lodged on 5 November 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
20. 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
21. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge 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 he will
refer only to the facts, arguments and documentary evidence, which he considered pertinent
for the assessment of the matter at hand.
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i. Main legal discussion and considerations
22. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note that the case at hand pertains to a claim for outstanding remuneration
lodged by the player against the club in connection with the employment relationship
previously initiated between them.
23. In this context, the Single Judge acknowledged that the player, on his part, claims to be
entitled to the bonus described in the side agreement concluded between the parties on 11
January 2021, as well as to the full amount mentioned in the payment agreement. On the
other hand, the club opposes the player’s claim by referring to the termination agreement
and to the consequent discharge of any further financial obligation.
24. In view of this dissent between the parties, the Single Judge turned his attention to the
documentation on file and outlined that the parties signed a constellation of agreements in
order to address the terms and conditions of their employment relationship, valid as from 1
August 2020 until 31 May 2021. In particular, the Single Judge found it noteworthy that: (i)
the club did not specifically contest the signature of any of the documents submitted by the
player; and (ii) said documents did not contain clauses of entire agreement nor expressly
cancelled the previous understanding between the parties, entailing that they should be
considered intertwined and entertained together.
25. With due consideration of the above and in attention to the club’s argumentation, the Single
Judge went on analysing the content of the termination agreement and the consequences
thereto. In doing so, the Single Judge observed that both the first paragraph and clause 1 of
said contract expressly established the parties’ mutual intention to specifically terminate the
employment agreement dated 8 July 2020. Furthermore, the Single Judge was also mindful
that the termination agreement did not make reference to the side agreement signed
between the parties on 11 January 2021 nor stipulated that it constituted a general discharge
of obligations regarding any potential outstanding remuneration arising from the other
agreements concluded between the parties.
26. Against this background, the Single Judge also noted that: (i) the player put the club in default
in two different opportunities and, in both of them, requested the bonus established in the
side agreement dated 11 January 2021; (ii) the club failed to provide any response to the
player’s default notices; and (iii) the club failed to provide any proof of performance of its
financial obligation, or any valid documentary evidence capable of justifying a possible waiver
of the player in relation to the amounts established thereto – to be analysed in line with the
jurisprudence of the Football Tribunal on the matter.
27. Consequently, the Single Judge was firm to determine that the club’s position as regards to
the discharge of its previous obligations could not be upheld. As such, the Single Judge
decided in accordance with the principle pacta sunt servanda that the club should be liable
to pay the player the outstanding bonus amounting to EUR 5,000.
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28. Taking into consideration the player’s request as well as the constant practice of the Football
Tribunal in this regard, the Single Judge decided to award the player interest at the rate of
5% p.a. on the outstanding amount as from 1 May 2021 until the date of effective payment.
29. In continuation, the Single Judge moved to the analysis of the payment agreement and found
it crucial that it was signed on 17 May 2021, hence after the conclusion of the termination
agreement (i.e. dated 16 May 2021). Likewise, the Single Judge highlighted that the club –
in spite of alleging that the termination agreement was the last document concluded by the
parties – did not raise any substantiated objection as regards to the signature of the payment
agreement.
30. Therefore, in accordance with art. 13, par. 5 of the Procedural Rules, the Single Judge
considered that the club failed to meet its burden of proof in order to demonstrate that the
conditions set forth in the payment agreement were not agreed upon between the parties.
Consequently, by referring once again to the general principle of pacta sunt servanda, the
Single Judge decided that the player should also be entitled to the outstanding remuneration
sought in connection to the payment agreement.
31. Lastly, the Single Judge once again recalled the jurisprudence of the Football Tribunal and
determined that the amounts due by the club to the player should be accrued by interest of
5% p.a. as from the due date of each instalment until the date of effective payment.
ii. Compliance with monetary decisions
32. 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.
33. 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.
34. Therefore, bearing in mind the above, the Single Judge 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 player, 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.
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35. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
36. 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
37. 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.
38. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Diogo Emanuel Alves Ramos, is accepted.
2.
The Respondent, Onisilos Sotiras 2014, has to pay to the Claimant, the following amount(s):
- EUR 5,000 as outstanding amount plus 5% interest p.a. as from 1 May 2021 until the date
of effective payment;
- EUR 2,500 as outstanding remuneration plus 5% interest p.a. as from 11 June 2021 until
the date of effective payment;
- EUR 2,500 as outstanding remuneration plus 5% interest p.a. as from 11 July 2021 until the
date of effective payment;
- EUR 2,000 as outstanding remuneration plus 5% interest p.a. as from 11 August 2021 until
the date of effective payment; and
- EUR 2,000 as outstanding remuneration plus 5% interest p.a. as from 11 September 2021
until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
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.
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.
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5.
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.
6.
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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