Labour Disputes
Texto da decisão
REF FPSD-7527
Decision of the
Dispute Resolution Chamber
passed on 22 November 2022
regarding an employment-related dispute concerning the player
Mateus Barbosa Soare
BY:
Mr Jon Newman (USA)
CLAIMANT:
Mateus Barbosa Soare, Brazil
Represented by Mr Fernando José Soares Guitti Guimarães
RESPONDENT:
Episkopi FC, Greece
Represented by Mr Alkis Papantoniou
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I. Facts of the case
1.
On 10 September 2021, the Brazilian player Mateus Barbosa Soare (hereinafter the
Claimant or the player) and the Greek club Episkopi FC (hereinafter the Respondent or the
club) concluded employment agreement (hereinafter the Employment Agreement), valid
until 30 June 2023.
2.
On 11 April 2022, the Claimant and the Respondent (jointly referred to as the parties)
mutually terminated the employment contract and signed a settlement agreement
(hereinafter the Settlement Agreement).
3.
In the Preamble of the Settlement Agreement, the Respondent acknowledged that “the
PLAYER would be entitled to receive until the end of the contract the total amount of € 27,965
(twenty-seven thousand nine hundred and sixty-five Euros) hereinafter referred to as Original
Amount Due”:
4.
In Clause 1 of the Settlement Agreement, the Parties agreed that “for the sake of amicable
solution”, the Respondent will make the following payments to the Claimant:
“a) € 6,000 (six thousand Euros) net until 13 April 2022; and
b) € 6,000 (six thousand Euros) net in 5 (five) equal, monthly and successive instalments of
€ 1,200 (one thousand two hundred Euros) each, beginning on 13 May 2022 and ending on
13 September 2022.”
5.
Clause 3 of the Settlement Agreement established:
“In the event of failure, delay or partial payment of any of the above-mentioned instalments
within the time limits established in this Settlement Agreement, the Original Amount Due will
become due at once, minus the amounts already paid in accordance with this Agreement,
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added by a fine of 10% (ten per cent) over the balance, provided that the PLAYER put the
CLUB in default in writing granting (emails below) it a 10-days deadline to comply with its
financial obligations.” (emphasis added)
6.
On 6 September 2022, the Claimant sent a default notice to the Respondent, invoking
Clause 3 of the Settlement Agreement to be paid within the next 10-days, i.e. requesting
the original amount due, however, to no avail.
7.
On 24 October 2022, the Claimant received the amount of EUR 2,400.
II. Proceedings before FIFA
8.
On 19 September 2022, 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 requests for relief of the Claimant were the following:
“a) Admit the present claim;
b) Declare that the Settlement Agreement between the Parties was lawfully terminated by
the Player with just cause, pursuant its Clause 3;
c) Hold Episkopi Football Club liable for breaching the Settlement Agreement;
d) Orders that Episkopi Football Club compensate the Player in light of its breach of contract
in the total amount of no less than €20,201.50 (twenty thousand two hundred one Euros
and fifty cents).
e) Orders the payment of legal interest at a rate of 5% p.a. to the compensation due by
Episkopi Football Club to the Player.”
10. The Claimant argued that since the Respondent failed to make the payments in
accordance with Clause 1 of the Settlement Agreement within the respective due dates,
Clause 3 of the Settlement Agreement was triggered and the original amount minus the
amounts already paid in accordance with the Settlement Agreement and a fine of 10% of
the said amount became due.
11. Taking into account that only the amount of EUR 9,600 was duly paid in accordance with
the Settlement Agreement, and the final two instalments of 13 August and 13 September
(2x EUR 1,200, i.e. EUR 2,400) remained outstanding, the Claimant was of the opinion the
Respondent must make a payment of EUR 18,365 (original amount due, i.e. EUR 27,965,
minus EUR 9,600) and 10% penalty thereof, i.e. EUR 1,836.5.
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b. Position of the Respondent
12. The Respondent rejected the claim of the Claimant.
13. Referring to the Preamble of the Settlement Agreement, the Respondent argued that “the
Club did not accept any liability for the early termination of the Contract, the Club did not
acknowledge that it was liable to pay the amount of EUR 23,640 which would be equal to the
remaining value of the employment contract if the Player would have remained in the Club,
neither of the payment of the amount of EUR 1,295 corresponding to flight tickets.”
The Respondent further argued that there is also no decision by the Dispute Resolution
Chamber which would have confirmed any breach by the Club.
14. In this respect, the Respondent was of the opinion that “in the definition of the “Original
Amount Due”, the parties accepted that the amount of EUR 3,030, corresponding to the salaries
of January - February 2022 and the Christmas Gift 2021 was undisputedly owed to the Player
and that the Player would be entitled to receive until the end of the contract the Original
Amount Due.”
15. Furthermore, the Respondent alleged that “the amount requested by the Claimant on the
basis of clause 3 of the Settlement Agreement, constitutes a penalty clause for the Club’s nonperformance of its contractual obligations arising solely and exclusively by the Settlement
Agreement” and, consequently “the part that surpasses the amount of EUR 2,400 and which
is equal to EUR 17,801.50 constitutes a contractual penalty” and that such penalty is
excessive and thus invalid.
16. The Respondent submitted the following request for relief:
“i. Reject all the arguments and requests of the Claimant;
ii. To determine that the contractual penalty on the total amount of EUR 17,801.50 is
excessive and disproportionate and thus, invalid;
iii. Subsidiarily, to determine that the contractual penalty of the total amount of EUR
17,801.50 is excessive and disproportionate and reduce it to a reasonable amount;
iv. To award to the Claimant default interest only to the main amount due, ie., the EUR
amount of EUR 2,400.”
17. Finally, one day after submitting its reply, the Respondent provided a proof of payment
of EUR 2,400.
c. Final comments of the Claimant
18. The Claimant was requested to comment on the payments allegedly made by the
Respondent.
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19. In this respect, the Claimant acknowledged to have received the amount of EUR 2,400 on
24 October 2022.
20. Finally, the Claimant pointed out that the Respondent shall “compensate the Player in light
of its breach of the Settlement Agreement and Employment Contract in the total amount of no
less than EUR 17,801.50.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the 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
19 September 2022 and submitted for decision on 22 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.
2.
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 (October 2022 edition), he is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Brazilian player and a Greek club.
3.
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 (October 2022
edition), and considering that the present claim was lodged on 9 September 2022, the July
2022 edition of said regulations (hereinafter the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
4.
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).
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c. Merits of the dispute
5.
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
considerations he will refer only to the facts, arguments and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club concerning
outstanding payments based on the Settlement Agreement.
7.
First of all, the Single Judge pointed out that it remained undisputed between the parties
that the Respondent failed to comply with the full payment of the amounts as per Clause 1
of the Settlement Agreement, i.e. the final two instalments of 13 August and
13 September (2x EUR 1,200, i.e. EUR 2,400) within the stipulated deadline.
8.
Consequently, the Single Judge concluded that Clause 3 of the Settlement Agreement was
triggered by the non-payment of the amounts as per Clause 1 of the Settlement
Agreement:
“In the event of failure, delay or partial payment of any of the above-mentioned instalments
within the time limits established in this Settlement Agreement, the Original Amount Due will
become due at once, minus the amounts already paid in accordance with this Agreement,
added by a fine of 10% (ten per cent) over the balance, provided that the PLAYER put the
CLUB in default in writing granting (emails below) it a 10-days deadline to comply with its
financial obligations.”
9.
In this context, the Single Judge recalled that the interpretation of the definition “original
amount due” was disputed by the Respondent, alleging that merely the amount of
EUR 3,030, corresponding to the salaries of January - February 2022 and the Christmas
Gift 2021 was owed to the Player and shall fall under the “original amount due”.
10. At this point, the Single Judge recalled the wording of the Preamble of the Settlement
Agreement and concluded that the said Preamble clearly stipulates that the total amount
of EUR 27,965 is referred to as original amount due and, consequently, rejected the
argumentation of the Respondent.
11. In view of the above, the Single Judge concluded that the calculation provided by the
Claimant was correct, i.e. the Respondent must make a payment of EUR 18,365 (which
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corresponds to the original amount due of EUR 27,965 minus already paid amount of
EUR 9,600).
12. Nonetheless, contrary to the argumentation of the Claimant, the Single Judge noted that
this amount cannot be interpreted as a penalty due to the wording and well as the ratio
behind the Settlement Agreement. In this respect, the Single Judge pointed out that the
penalty is specifically provided for in Clause 3 of the Settlement Agreement, i.e. “10% over
the balance”.
13. The Single Judge remarked that the stipulated amount is in line with the jurisprudence of
the DRC (i.e. it is not excessive nor disproportionate). The Single Judge further established
that the penalty shall be calculated as per the day when the Clause was triggered, i.e.
when the “balance” amounted to EUR 18,365 (10% penalty thereof amounts to
EUR 1,836.5).
14. Finally, the Single Judge noted that during the proceedings, the Respondent submitted a
proof that it made a payment of EUR 2,400. As this amount was acknowledged by the
Claimant, the Single Judge decided that is shall be deducted from the principal amount
of EUR 18,365.
15. Bearing in mind the basic legal principle of pact sunt servanda, which in essence means
that agreements must be respected by the parties in good faith, the Respondent is held
liable to pay the Claimant the outstanding amounts deriving from the contract concluded
between the parties, namely the outstanding amount of EUR 15,965 (EUR 18,365 minus
EUR 2,400) as well as the penalty of EUR 1,836.5.
ii. Consequences
16. Having stated the above, the Single Judge observed that the financial obligations deemed
as outstanding in the present case correspond to the EUR 15,965 (EUR 18,365 minus
EUR 2,400) as well as the penalty of EUR 1,836.5.
17. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant
the amounts claimed as outstanding under the contract, in total EUR 17,801.5, as detailed
above.
18. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant 5%
interest p.a. over the amount of EUR 15,965 as from 19 September 2022 until the date of
the effective payment. In line with the legal principle ne bis in idem, the Single Judge did
not award any interest over the penalty.
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iii. Compliance with monetary decisions
19. 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.
20. 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.
21. 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.
22. 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.
23. 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
24. 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.
25. 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.
26. Lastly, the Single Judge concluded his 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, Mateus Barbosa Soare, is partially accepted.
2.
The Respondent, Episkopi FC, has to pay to the Claimant, the following amount(s):
-
EUR 15,965 outstanding amount plus 5% interest p.a. as from 19 September 2022
until the date of the effective payment;
EUR 1,836.5 as 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
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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
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