Labour Disputes
Texto da decisão
REF FPSD-4277
Decision of the
Dispute Resolution Chamber
passed on 13 January 2022
regarding an employment-related dispute concerning the player Juan Pablo
Anor Acosta
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Sihon Gauci (Malta), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
Juan Pablo Anor Acosta, Venezuela
Represented by Alvaro Martinez, Inigo Anor Acosta
RESPONDENT:
Al Ain Saudi Football Club, Saudi Arabia
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I.
Facts of the case
1.
On 6 October 2020, the Venezuelan player, Juan Pablo Anor Acosta (hereinafter: the Claimant
or player), and the Saudi Arabian club, Al Ain (hereinafter: the Respondent or club) signed an
employment contract (hereinafter: contract) valid as from as from the date of signature until
30 June 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant USD 1,400,000
net during the “first season” and USD 1,500,000 net during the “second season”.
3.
The total amount of USD 1,500,000 net due during the second season was payable as
follows:
USD 300,000 net until 1 October 2021;
USD 100,000 net as monthly salary between 31 July 2021 until 30 June 2022 (12x).
4.
Art. 4.6 of the contract, under the subtitle of “Any other benefits” establishes: “Insurance
covering injury, medical treatment, sickness disability or death during the term of his contract
with the [Respondent], provided that it shall include insurance coverage for the cases whose
effects extend after the end of the contract”.
5.
On 13 October 2021, the Claimant put the Respondent in default and requested payment of
USD 600,000 net plus “surgery and recovery treatment costs”, corresponding to the salaries
between July 2021 and September 2021 as well as the lump sum due on 1 October 2021,
within 15 days.
6.
On 29 October 2021, the Claimant terminated the contract with the Respondent due to its
non-compliance with its financial obligations referring to art. 14bis RSTP.
7.
According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed up to date.
II. Proceedings before FIFA
8.
On 12 November 2021, 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
9.
The Claimant requested payment of the following monies:
- USD 600,000 net as outstanding remuneration plus 5% interest p.a. as of the due dates;
- USD 63,698.51 as reimbursement of surgery and treatment costs plus 5% interest p.a. as
of the date of claim.
- USD 900,000 net as compensation for breach of contract corresponding to the residual
value of the contract, plus 5% interest p.a. as from 30 October 2021.
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10. In his claim, the Claimant held having had just cause to terminate the contract since the club
failed to comply with its financial obligations, even after the default notice.
11. Furthermore, the player held that the club failed to remit any payments as from July 2021
and that he is entitled to be reimbursed for his medical costs in accordance with art. 4.6 of
the contract.
12. In this regard, the player submitted the following receipts/invoices corresponding to a total
amount of USD 63,698.15:
USD 15,000 for physical therapy and rehab between 23 April 2021 and 7 May 2021;
USD 21,000 for physical therapy and rehab between 4 August 2021 and 20
September 2021;
USD 22,440 physical therapy and rehab between 22 September 2021 and 11
November 2021;
USD 1,302.95 for a chiropractor treatment on 7 May 2021;
USD 3,955.20 for a chiropractor treatment on 20 May 2021.
13. Moreover, the player held being entitled to compensation in the amount of the residual value
of the contract.
b. Position of the Respondent
14. The Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 12 November 2021 and submitted for
decision on 13 January 2022. 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.
16. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (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 Venezuelan player
and a Saudi club.
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17. 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 that the present claim was lodged on 12 November 2021, the August 2021
edition edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
18. 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. Merits of the dispute
19. 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
20. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the Claimant’s argumentation that he terminated the contract with just
cause, after more than USD 600,000 remained outstanding despite a default notice.
21. The Respondent, for its part, failed to present its response to the claim of the player, in spite
of having been invited to do so. In this way, the Chamber considered that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
22. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred
that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a decision upon the
basis of the documents already on file, in other words, upon the statements and documents
presented by the Claimant.
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23. In this context, the Chamber acknowledged that the Claimant’s allegations remained
uncontested. Taking into account art. 14bis of the Regulations and in view of the outstanding
remuneration of more than 3 monthly salaries and a lump sum payment as well as the default
notice sent, the Chamber concluded that the Claimant had just cause to terminate the
contract with the Respondent on 29 October 2021.
ii. Consequences
24. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
25. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 3 monthly salaries
(July, August and September 2021) as well as a lump sum payment due on 1 October 2021
(i.e. USD 300,000) under the contract, amounting to USD 600,000 net.
26. Furthermore, the DRC noted that the player claimed reimbursement of his medical costs in
accordance with art. 4.6 of the contract. In this context, the Chamber held that the player
submitted receipts/invoices in the total amount of USD 63,698.15, which remained
uncontested by the Respondent. On account of the above, the Chamber decided to Since
award such amount.
27. In accordance with the above-mentioned considerations, the Chamber decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent is liable
to pay to the Claimant outstanding remuneration in the total amount of USD 63,698.15, plus
5% interest as of the respective due dates.
28. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
29. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
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30. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
31. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of USD 900,000 (i.e. October 2021 until June 2022; 9x USD 100,000) serves
as the basis for the determination of the amount of compensation for breach of contract.
32. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
33. In this respect, the Chamber noted that the Claimant had not found new employment and
therefore was not able to mitigate his damages.
34. Consequently, on account of the above-mentioned considerations, the Chamber decided that
the Respondent must pay the amount of USD 900,000 net as compensation for breach of
contract to the Claimant, which is considered by the Chamber to be a fair and reasonable
amount.
35. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 12 November 2021 until the date of effective payment.
iii. Compliance with monetary decisions
36. 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.
37. 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.
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38. 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.
39. 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.
40. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the
Regulations.
d. Costs
41. 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.
42. 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.
43. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Juan Pablo Anor Acosta, is partially accepted.
2.
The Respondent, Club Al Ain Saudi Football Club, has to pay to the Claimant, the following
amount(s):
- USD 100,000 net as outstanding remuneration plus 5% interest p.a. as from 1 August 2021
until the date of effective payment;
- USD 100,000 net as outstanding remuneration plus 5% interest p.a. as from 1 September
2021 until the date of effective payment;
- USD 100,000 net as outstanding remuneration plus 5% interest p.a. as from 1 October
2021 until the date of effective payment;
- USD 300,000 net as outstanding remuneration plus 5% interest p.a. as from 2 October
2021 until the date of effective payment;
- USD 63,698.15 plus 5% interest p.a. as from 12 November 2021 until the date of effective
payment;
- USD 900,000 net as compensation for breach of contract plus 5% interest p.a. as from 12
November 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. 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
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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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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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