Labour Disputes
Texto da decisão
REF FPSD-3623
Decision of the
Dispute Resolution Chamber
passed on 9 December 2021
regarding an employment-related dispute concerning the player Diego
Bardanca Florez
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Khadija Timera (Senegal), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Diego Bardanca Florez, Spain
Represented by Clara Real Furio
RESPONDENT:
Lokomotiv Tashkent, Uzbekistan
Represented by Ivan Bykovskiy
Page 2
REF FPSD-3623
I.
Facts of the case
1.
On 16 February 2021, the Spanish player, Diego Bardanca Florez (hereinafter: the Claimant),
and the club from Uzbekistan, Lokomotiv Tashkent (hereinafter: the Respondent) signed an
employment contract valid as from 1 February 2021 until 30 November 2021.
2.
According to the employment contract, the Respondent undertook to pay the Claimant a
total amount of USD 100,000 net, payable in 10 monthly instalments of USD 10,000.
3.
On 31 May 2021, the parties terminated the contractual relationship and concluded a
termination agreement.
4.
Art. 1.3 of the termination agreements establishes: “The parties have that [the Respondent]
undertakes to pay [the Claimant] 32207 US Dollars net of any taxes plus all the outstanding
bonuses up to the date of termination, all to be paid by August 28, 2021”.
5.
According to art. 1.4. of the termination agreement: “The club shall provide the Player with
a flight ticket to return to Spain on 4 June 2021”.
6.
Art. 1.5 of the termination agreement reads as follows: “In case the said amounts and flight
ticket are not fully paid within the deadline, the Player will be immediately entitled, in addition
to the above amounts and ticket, to the full amount of outstanding salaries as in the
employment contract starting from the date of termination, net of any taxes, without
applying any mitigation”.
7.
On 30 August 2021, the Claimant put the Respondent in default and requested payment of
USD 19,845 within 5 days. In this letter, he acknowledged receipt of a payment in the amount
of USD 12,362 and therefore requested the difference to USD 32,207.
8.
On 5 September 2021, the Claimant put the Respondent in default and requested payment
of USD 79,845, corresponding to the outstanding amount of USD 19,845 and USD 60,000
in accordance with art. 1.5 of the termination agreement.
9.
On 6 September 2021, the Respondent replied and remitted the amount of USD 19,845 to
the Claimant.
10. On 6 September 2021, the Claimant acknowledged receipt of the amount of USD 19,845,
but insisted that he is entitled to USD 60,000 in accordance with art. 1.5 of the termination
agreement.
Page 3
REF FPSD-3623
II. Proceedings before FIFA
11. On 09 September 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
12. In his claim, the Claimant requested payment of USD 60,000 net of any taxes plus 5% interest
as of 28 August 2021.
13. Furthermore, the player requested to be provided with tax certificates regarding the payments
of USD 32,207 as well as to “condemn the club to pay any further taxes if requested by the
Spanish tax authorities”.
14. In his claim, the player held that the club failed to comply with the termination agreement
and to remit the total payment of USD 32,207 until 28 August 2021. Therefore, the Claimant
argued that he was entitled to a payment of USD 60,000 in accordance with art. 1.5 of the
termination agreement.
b. Position of the Respondent
15. In its reply, the Respondent rejected the player’s claim and pointed out that the Claimant is
acting in bad faith.
16. The Respondent held that it “paid” the residual amount of USD 19,845, but that the amount
was only credited to the player’s bank account on 6 September 2021 “because the week
from 30 August 2021 to 5 September 2021 was non-business in Uzbekistan, and the bank
failed to execute the Club's order of 27 August 2021 on time”.
17. In this regard, the club pointed out that the due date for the payment, 28 August 2021, was
a Saturday, which is a non-working day in Uzbekistan.
18. On account of the above, the club deems having complied with the payments arising from
the termination agreement and that the player is not entitled to receive any penalty.
19. Moreover, the club held that the penalty is disproportionate and would need to be reduced
if the Chamber deems that a penalty is applicable.
20. Additionally, the club rejected that it has the obligation to possibly pay taxes in Spain.
Page 4
REF FPSD-3623
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. 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 09 September 2021 and submitted for
decision on 9 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.
22. 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 Spanish player and
a club from Uzbekistan.
23. 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 09 September 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
24. 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
25. 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.
Page 5
REF FPSD-3623
i. Main legal discussion and considerations
26. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the main question of the dispute is if the player is entitled to
the payment of USD 60,000 resulting from the termination agreement or not.
27. The Chamber noted that the Claimant requested payment of the EUR 60,000, in accordance
with art. 1.5 of the termination agreement, since the club failed to remit the full amount
agreed upon in the relevant agreement until 28 August 2021.
28. The Respondent rejected the claim and held having “paid” the complete amount on 27
August 2021, but that the amount was only credited to the player on 6 September 2021
since “week from 30 August 2021 to 5 September 2021 was non-business in Uzbekistan.”
29. The Chamber therefore concluded that it has to establish if art. 1.5 of the termination
agreement applies and therefore compensation would be payable.
30. In this context, the Chamber analysed the content of the termination agreement and held
that the obligation to pay the full amount of USD 32,207 until 28 August 2021 was clearly
established.
31. The DRC further noted that the Respondent appears to have initiated the payment of the
residual amount on 27 August 2021, but failed to make sure that the player received the
money until 28 August 2021.
32. Due to the absence of any documents regarding the alleged holiday period, and since the
Chamber only found proof of public holidays from 1 to 3 August in Uzbekistan, the DRC
concluded that the payment could have been performed within the deadline established in
the termination agreement. Therefore, the members of the Chamber established that the
payment was indeed late.
33. On account of the above, the DRC recalled the wording of art. 1.5 of the termination
agreement, which reads as follows:
“In case the said amounts and flight ticket are not fully paid within the deadline, the Player
will be immediately entitled, in addition to the above amounts and ticket, to the full amount
of outstanding salaries as in the employment contract starting from the date of termination,
net of any taxes, without applying any mitigation”.
34. Taking into account the content of art. 1.5 of the termination agreement, the DRC concluded
that relevant clause does not have a penalty nature, but establishes the right to claim the
residual value from the employment contract as compensation. Therefore, the DRC held that
it is per se and proportionate and shall not be reduced.
Page 6
REF FPSD-3623
ii. Consequences
35. On account of the above, the DRC established that the employment contract would have run
until 30 November 2021 and that the residual value of the contract amounts to USD 60,000
net (6x USD 10,000).
36. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD 60,000
net to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
37. 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 the date of claim until the date of effective payment.
iii. Compliance with monetary decisions
38. 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.
39. 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.
40. 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.
41. 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.
42. 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.
Page 7
REF FPSD-3623
d. Costs
43. 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.
44. 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.
45. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
Page 8
REF FPSD-3623
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Diego Bardanca Florez, is partially accepted.
2.
The Respondent, Lokomotiv Tashkent, has to pay to the Claimant, the following amount:
- USD 60,000 net plus 5% interest p.a. as from 9 September 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
Page 9
REF FPSD-3623
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
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
Page 10