Labour Disputes
Texto da decisão
REF FPSD-4199
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Cristian
Benavente Bristol
COMPOSITION:
HENDEL, Clifford J. (USA & France), Deputy Chairperson
COLLINS, Angela (Australia), Member
MOHAMED AL-NOAIMI, Dana (Qatar), Member
CLAIMANT / COUNTER-RESPONDENT:
Cristian Benavente Bristol, Spain
Represented by Joaquín Jofre Fernández-Abascal
RESPONDENT / COUNTER-CLAIMANT:
Pyramids FC, Egypt
Represented by Müller & Paparis
INTERVENING PARTY:
Alianza Lima, Peru
Represented by Diego Guerrero
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I.
Facts of the case
1.
On 22 January 2019, the Belgian club Sporting du Pays de Charleroi NV (hereinafter:
Charleroi) and the Egyptian club Pyramids FC (hereinafter: Pyramids FC or the Respondent /
Counter-Claimant) signed a transfer agreement by means of which the services of the Spanish
player, Mr Cristian Benavente Bristol (hereinafter: the player or the Claimant / CounterRespondent), were transferred from the former to the latter against a payment of a transfer
fee amounting to EUR 4,300,000 net.
2.
On the same date, i.e. 22 January 2019, Pyramids FC and the player concluded an
employment contract valid as from the date of signature until 30 June 2022 (hereinafter: the
employment contract).
3.
In accordance with item 4 of the employment contract, Pyramids FC undertook to pay the
player a total amount of EUR 5,250,000 net, as follows:
a.
b.
c.
d.
e.
4.
EUR 87,500 as monthly salary;
EUR 225,000 in cash on 30 January 2019;
EUR 450,000 in cash on 30 August 2019;
EUR 450,000 in cash on 30 August 2020; and
EUR 450,000 in cash on 30 August 2021.
Paragraphs 6, 7 and 8 of the abovementioned item 4 of the employment contract also
established the following:
“6. [Pyramids FC] shall provide [the player] six return Business Class air tickets for him
and his wife and kids from his country to Egypt per season”.
7. Housing allowance: [Pyramids FC] provides free housing for the player.
8. Transportation: [Pyramids FC] provides free car for the player”.
5.
Furthermore, item 6 of the employment contract read as follows:
“Item 6: Regular Payment of Salary & Termination of Contract
1. [Pyramids FC] may not delay payment of the [the player’s] salaries or terminate the
contract due to player’s injury during play or training.
2. In case [Pyramids FC] fails to pay to [the player] two monthly salaries as determined
in item 4 of this Contract, [the player] is obliged to send [Pyramids FC] notice in
writing, expressly warning that he will unilaterally terminate the contract for such
non-payment and give it a further term of ten (10) working days to pay in full such
monetary amount. If within the next ten (10) working days, [Pyramids FC] fails to
pay to [the player] this monetary amount, [the player] shall have the right to
unilaterally terminate this contract with just cause and request compensation”.
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6.
On 4 August 2019, Pyramids FC and the French club, FC Nantes (hereinafter: FC Nantes),
signed a loan agreement by means of which the services of the player were temporary
transferred from the former to the latter from 5 August 2019 until 30 June 2020 (hereinafter:
the first loan agreement).
7.
On 5 August 2019, the player and Pyramids FC signed a side agreement titled “loan
agreement” according to which they stipulated the conditions binding them during the loan
period to FC Nantes (hereinafter: the first side agreement).
8.
In accordance with clause 3.1 of the first side agreement, Pyramids undertook to pay the
player the following amounts during the loan period to FC Nantes:
a. EUR 500,000 net “after five business days commencing from the actual date of
receiving the amount from [FC Nantes] and this amount shall be paid from [FC
Nantes] to [Pyramids FC] on 1 September 2019”;
b. EUR 500,000 net, payable in five instalments of EUR 100,000 each, due by: (i) 15
September 2019; (ii) 15 October 2019; (iii) 15 November 2019; (iv) 15 December
2019; and (v) 31 December 2019.
9.
In addition, clause 3.2 of the first side agreement read as follows: “Hence, by receiving from
[Pyramids FC] these payments in (2019-2020) for the year loan, the player acknowledges that
he received all his dues from [Pyramids FC] and he has no right to claim [Pyramids FC] during
the loan period, and all player’s financial rights, set out in this agreement, are the sole rights
that he may have accordingly”.
10. On 28 June 2020, Pyramids FC sent the player a letter informing inter alia that: (i) the national
championship for the 2019/2020 season would resume in July 2020 after the suspension
cause by the COVID-19 pandemic, and the commencement of the 2020/2021 would be
announced after the ending of the previous championship; (ii) the provisions of the
employment contract would be effective as from the beginning of the 2020/2021 season;
and (iii) the club would notify the player once the league of 2019/2020 season had ended in
order to “start negotiations of rescheduling the salaries, set forth in [the employment
contract], in accordance with the new season period”.
11. On 29 June 2020, the player replied to Pyramids FC’s letter, in quoted verbatim: “[…] My
understanding is that you do not want me to join the trainings on July 1, 2020 and want me
to wait until the calendar of 20/21 season is clarified (hopefully during July). I have no issue
with this but I remain at your disposal to return asap to physical training. In the meanwhile, I
will maintain personal training and expect from team physical coach a schedule of training
seasons. I understand and confirm you that my contract is valid. And in place in the terms
signed and agreed. Any change on that contract would be discussed at the appropriate time
but I insist that my availability for the club is 100% and I am ready to resume my presence in
Egypt ASAP”.
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12. On 1 October 2020, Pyramids FC and the player signed a document titled “Contract of
Professional Player’s Entitlements” according to which they stipulated that the player would
be loaned to the Belgian club, Royal Antwerp Football Club NV (hereinafter: RAFC) for the
2020/2021 season (hereinafter: the second side agreement).
13. In accordance with art. 3 of the second side agreement, Pyramids FC undertook to pay the
player the following amounts during the loan period to RAFC:
a. EUR 700,000 net, payable in seven instalments of EUR 100,000 each, due by: (i) 15
October 2020; (ii) 1 November 2020; (iii) 1 December 2020; and (iv) 1 January 2021;
(v) 1 February 2021; (vi) 1 March 2021; and (vii) 1 April 2021; and
b. EUR 200,000 net by 1 February 2021, “provided that the obligation of paying the
loan fee set forth in the [second loan agreement] is fulfilled by RAFC within the
agreed date, which is 30 October 2020. It is agreed between the parties that the
club shall not be responsible for any delay made by RAFC. The aforementioned
amount will not be due as long as RAFC fails to comply with its obligation”.
14. In addition, clause 3.3 of the second side agreement read as follows: “Hence, by receiving
from [Pyramids FC] the aforementioned payments, the player acknowledges that he waives
all his dues before the club he has no right to claim the club with any claim derived from [the
employment contract] regarding the period of the term of the loan prior to the term of loan.
To avoid any doubts, the player has no rights to claim the club with the rest salaries set forth
in [the employment contract] for seasons 2018/2019 and 2019/2020 in particular the last
salary, and his dues derived from the loan agreement dated 05/09/2019 concluded between
the player and [Pyramids FC]”.
15. In parallel, on 5 October 2020, Pyramids FC and RAFC signed a loan agreement valid as from
1 October 2020 until 30 June 2021 (hereinafter: the second loan agreement).
16. Clause 1.5 of the second loan agreement read as follows: “During the Term of the Loan,
RAFC will be responsible for payment of wages and other expenses to the Player in
accordance with the employment agreement agreed between the Player and RAFC. Pyramids
FC shall have no other liability to the Player during the Term of the Loan. In particular,
Pyramids FC shall be released from its obligations under the Employment Agreement to pay
any fee, bonus, benefit or other type of remuneration”.
17. In accordance with clause 2 of the second loan agreement, RAFC undertook to pay Pyramids
FC a loan fee of EUR 350,000 net on or before 30 October 2020.
18. Furthermore, under clause 3 of the second loan agreement the parties agreed that RAFC
would have the option to acquire the definitive registration of the player “no later than 30
June 2021”, against the payment of a transfer fee of EUR 2,000,000.
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19. Clause 3.2 of the second loan agreement read as follows: “If RAFC does not exercise the
Purchase Option in compliance with the conditions defined in this Agreement within the
mentioned date, then the Player’s registration will revert back to Pyramids FC on 1 July 2021”.
20. On 1 February 2021, Pyramids FC, RAFC and Charleroi signed a sub-loan agreement in
accordance with which the player was sub-loaned from RAFC to Charleroi from 1 February
2021 until 30 June 2021 (hereinafter: the sub-loan agreement).
21. On 1 July 2021, the player flew from Madrid, Spain to Cairo, Egypt with a stopover in
Frankfurt, Germany. The plane tickets were issued by Pyramids FC and sent to the player via
the electronic application WhatsApp.
22. On 7 September 2021, the player put Pyramids FC in default and requested payment of EUR
625,000 net corresponding to his salaries of July and August 2021, as well as the lump sum
due on 31 August 2021. The player granted Pyramids FC with a 10 days’ deadline to cure the
breach.
23. On 8 September 2021, Pyramids FC replied to the player’s notification and inter alia stated
that “the payment dates of season 2021/2022 salaries set forth in the employment contract
are delayed until the actual commencement date of new season 2021/2022”. Therefore,
Pyramids FC wrote that that it would inform that player of the start of the season to “start
the negotiations of rescheduling the salaries set forth in the employment contract in
accordance with the new season period”.
24. On 10 September 2021, the player sent another letter to Pyramids FC. In this opportunity,
the player rejected the club’s interpretation of the facts and proposed a new payment
schedule to remedy the situation, as follows:
a. EUR 500,000 net on 1 October 2021; and
b. EUR 1,000,000 net to be paid in 8 monthly instalments of EUR 125,000 each, the
first due by 1 October 2021 and the last due by 1 June 2022.
25. On 14 September 2021, the player’s representative wrote to Pyramids FC via e-mail and
acknowledged that the player had not been authorized to join the pre-season training stage
in Alexandria, Egypt together with the other members of the team. Consequently, he
requested to be informed on where he should avail himself for the following days.
26. On the same date, i.e. 14 September 2021, Pyramids FC sent the player a request for medical
and anti-drugs tests to be taken on the following day.
27. On 15 September 2021, Pyramids FC answered to the player’s correspondence and informed
that – by decision of the technical staff – the player should not join the rest of the team for
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the pre-season but should attend the training session in another location, under penalty of
breach of contract.
28. On 26 October 2021, the player notified Pyramids FC the termination of the employment
contract due to overdue payables (cf. item 6 of the employment contract and art. 14bis of
the FIFA Regulations on the Status and Transfer of Players – RSTP). In this opportunity, the
player pointed out that the following amounts remained outstanding: (i) EUR 450,000 net
due by 30 August 2021; and (ii) the salaries of July, August, and September 2021, being EUR
87,500 per month. What is more, the player outlined that the club was not providing him
with a free car and housing.
29. On 31 January 2022, the player signed a new employment agreement with the Peruvian club,
Alianza Lima (hereinafter: the intervening party) valid as from 1 February 2022 until 31
December 2022.
30. Accordingly, the player is entitled to: (i) a monthly salary of USD 3,000 net; and (ii) a fixed
payment of USD 176,500 net, in 11 monthly instalments, due by the last day of each month
starting on 28 February 2022 and ending on 31 December 2022 (i.e. USD 16,045.45 as
average remuneration).
II. Proceedings before FIFA
31. On 4 November 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
32. In his claim, the player referred to the correspondences exchanged between the parties during
September and October 2021. In doing so, he argued that the club failed to honour its
contractual obligations and gave cause to the termination in line with the item 6 of the
employment contract and art. 14bis of the FIFA RSTP.
33. Taking the above into consideration, the player requested to be awarded the following
amounts:
a. EUR 788,333.33 net as outstanding remuneration, corresponding the salaries from
July 2021 until 26 October 2021, as well as the lump sum of EUR 450,000 due on
30 August 2021; and
b. EUR 1,086,666.67 net as compensation for breach of contract, corresponding to
the residual value of the employment contract (EUR 711,666.67) plus 3 additional
salaries (EUR 375,000).
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b. Reply and counterclaim of Pyramids FC
34. On its turn, Pyramids FC opposed the allegations of the player and lodged a counterclaim
against him.
35. After recalling the background of its employment relationship with the player, Pyramids FC
referred to the COVID-19 outbreak and to the doctrine of clausula rebus sic stantibus.
36. In this respect, Pyramids FC stressed that the player refused himself to negotiate the salaries
for the new season and simply terminated the employment contract without just cause. What
is more, Pyramids FC argued, inter alia, that:
a. the player was not entitled to any salaries for the 2020/2021 season;
b. the lump sum of EUR 450,000 due by 31 August 2021 corresponded to a “loyalty
bonus” and should not be paid since the player left the club before the end of the
season;
c. “[Pyramids FC] assumed, due to the high salary and payments, which the player
received before, he would have enough reserves to overcome the months of
suspension resp. delay of the season (2021/2022)”. Likewise, Pyramids FC
considered that the amounts paid by RAFC and Charleroi would be the entire
remuneration due to the player for the whole 2020/2021 season in Belgium and
Egypt; and
d. “the employment relationship was terribly affected by the pandemic and the fact
that [Pyramids FC] had not paid the salary of [the player], even if it would have been
due, did not give him just cause to immediately terminate [the employment
contract]”.
37. Based on the above, Pyramids FC concluded that it should be the one entitled to receive
compensation for breach of contract amounting to “one-quarter of [the player’s] monthly
salary” (i.e. EUR 21,875), as well as damages for further losses in accordance with the Swiss
Law (i.e. EUR 966,666.67, corresponding to the non-amortized transfer fee). Furthermore,
the club requested that 5% interest p.a. as from 27 October 2021 accrued on the amounts
due.
c. Reply to the counterclaim of the player
38. After being invited to do so, the player submitted his reply to the counterclaim of Pyramids
FC.
39. Initially, the player challenged Pyramids FC’s argumentation as to the “loyalty bonus” and
pointed out that there was not such reference in the employment contract. As such, the
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player claimed that the amount was unconditioned and should have been paid on 31 August
2021.
40. In continuation, the player clarified that the parties were already aware of the COVID-19
outbreak at the time of the signature of the second loan agreement, the second side
agreement, and the sub-loan agreement. Likewise, the player maintained that Pyramids FC
knew that the player would resume the employment contract as from 1 July 2021 – especially
when considered that: (i) the club was the one providing tickets for his return to Egypt; and
(ii) he had already joined the training sessions with his teammates. Therefore, the player
recalled that the employment contract was in force again, hence that both parties were
bounded by their rights and obligations.
41. Finally, the player challenged Pyramids FC’s allegations as to the COVID-19 pandemic. In this
respect, the player highlighted that he had not been notified about any decision not to paid
salaries for the 2021/2022 season. Moreover, the player alleged that Pyramids FC received a
high income from the transfer of important players, but deliberately hired new players for its
squad – contributing to the growth of its debt.
42. In view of the foregoing, the player reiterated his requests for relief as per his statement of
claim.
d. Additional comments by Pyramids FC
43. After being informed of the player’s reply to the counterclaim, Pyramids FC provided
additional comments. Accordingly, it recalled its argumentation as to the “loyalty bonus” and
to the fact that the player had already earned the entire remuneration for the 2020/2021
season from RAFC and Charleroi.
44. Subsequently, Pyramids FC opposed the player’s allegations as to the COVID-19 pandemic –
and its revenues and/or expenses during the period. The club concluded, in this respect, that
the finances were indeed highly affected by the financial crisis.
45. Lastly, Pyramids FC reiterated the content of its previous submission.
e. Position of the intervening party
46. As a consequence of the club’s counterclaim and due to the possibility of being deemed
jointly liable for the payment of the compensation in accordance with art. 17, para. 2 of the
FIFA RSTP, Alianza Lima was invited to present its position to the file.
47. In its submission, the intervening party briefly alleged that it had only contacted the player
during the last week of January 2022, therefore after the termination of his employment
relationship with Pyramids FC and when the player was already free agent.
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48. Therefore, the intervening party referred to the jurisprudence of Dispute Resolution Chamber
on the matter and concluded that: (i) Pyramids FC breached the employment contract, which
was terminated by the player with just cause; and (ii) “there is no responsibility for Alianza
Lima”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
49. 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 4 November 2021 and submitted for
decision on 21 April 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.
50. 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 (March 2022 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
an Egyptian club, with the intervention of a Peruvian club.
51. 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 (March 2022 edition), and
considering that the present claim was lodged on 4 November 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
52. 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
53. 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
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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
54. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the case at hand pertains to a claim for breach of contract
lodged by the player against Pyramids FC in connection with the employment contract
concluded between them on 22 January 2019.
55. Specifically, the DRC identified that the player terminated the employment contract on 26
October 2021 due to overdue payables and the parties strongly dispute whether he had just
cause to do so as well as the consequences that follow.
56. In this context, the DRC first of all noted that, during the term of the employment relationship
with Pyramids FC, the player was loaned three times: firstly to FC Nantes, secondly to RAFC,
and thirdly (sub-loaned) to Charleroi. In this meanwhile, the parties also signed several side
agreements in order to settle the outstanding amounts due by Pyramids FC to the player.
57. The Chamber further observed that it remained undisputed between the parties that, on 1
July 2021 and after the end of the sub-loan with Charleroi, the player resumed his services
with Pyramids FC, and the employment contract was reinstated. What is more, on the same
date, the player flew back to Cairo, Egypt with plane tickets issued by Pyramids FC, and joined
the training sessions with its team.
58. Against this background, the Chamber was mindful that the player alleged that a significant
part of his remuneration was not paid by Pyramids FC – in spite of having been granted with
a reasonable deadline to cure the breach. On the other hand, the DRC also took due
consideration of Pyramids FC’s position according to which the player was not entitled to
receive any salary for the 2020/2021 season, nor the lump sum of EUR 450,000 due by 31
August 2021. The Chamber moreover underlined that Pyramids FC referred, inter alia, to the
agreements signed between the parties, as well as to the COVID-19 pandemic, and the
financial crisis that arose as a consequence.
59. In view of this dissent between the parties, the Chamber went on to analyse the wording of
the several agreements signed between the parties – and especially the second loan
agreement, the second side agreement, and the sub-loan agreement. In doing so, the DRC
was satisfied with the conclusion that all the aforementioned documents were clear to
establish that the relationship between the player and either RAFC or Charleroi would last
exclusively until 30 June 2021. Moreover, the second side agreement expressly regulated the
remuneration due to the player during the cited loan period – but did not mention any
arrangement concerning the future. Consequently, the Chamber was convinced that the
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player’s registration in fact reverted to Pyramids FC as from 1 July 2021, entailing that every
right and obligation undertook by the parties under the employment contract was valid and
binding as from the said date.
60. In addition to the above, the DRC also founded noteworthy that Pyramids FC was
undoubtedly aware of the player’s return insofar as it provided him with the relevant flight
tickets and allowed him to join its squad for the subsequent training sessions. The Chamber
did not fail to notice both that none of the agreements signed between the parties established
that the remuneration set out in the employment contract for the remaining months of 2021
would not be due or would be renegotiated. On the contrary, the DRC observed that the
player offered Pyramids FC a new payment schedule, to no avail.
61. It followed from the above, in the Chamber’s view, that Pyramids FC could not meet its
burden of proof (cf. art. 13, par. 5 of the Procedural Rules) to demonstrate that the
outstanding salaries requested by the player at the time of the termination were not due.
Consequently, the members of the DRC unanimously decided that Pyramids FC’s
argumentation in this respect could not be upheld, and that the employment contract was
again in force following the natural expiry of the second loan agreement (and the sub-loan).
62. Having established the above, the Chamber moved to the analysis of Pyramids FC’s position
as to the COVID-19 outbreak and the doctrine of clausula rebus sic stantibus.
63. Accordingly, the DRC recalled that FIFA issued a set of guidelines, the COVID-19 Guidelines,
which aim at providing appropriate guidance and recommendations to member associations
and their stakeholders, to both mitigate the consequences of disruptions caused by COVID19 and ensure that any response is harmonised in the common interest. Analysing the
concept of force majeure situation, FIFA did not declare that COVID-19 was a situation of
force majeure in a country or territory specific, or that any specific employment or transfer
agreement was affected by the concept of force majeure. In other words, in a given dispute,
it is up to the party invoking force majeure to establish the existence of said event under the
applicable law / regulations, as well as the consequences deriving from it. The analysis of
whether a force majeure situation existed must be considered on a case-by-case basis, taking
into account all relevant circumstances.
64. In casu, the Chamber highlighted that Pyramids FC did not file together with its reply and
counterclaim any convincing documentation pertaining to the question and the concept of
force majeure in line with the COVID Guidelines issued by FIFA. Moreover, the Chamber
founded it crucial that: (i) the parties had already signed several agreements to settle their
financial obligations, hence having found an amicable solution; and (ii) the player offered a
new payment schedule to Pyramids FC but the later did not accept nor offered a compromised
solution.
65. Likewise, the DRC deemed noteworthy that the alleged financial difficulties faced by Pyramids
FC were not valid arguments per se in view of its well-established jurisprudence of the
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Chamber. In particular, said difficulties are not considered a valid reason not to perform
contractual obligations, moreover considering that the parties re-negotiated their dues after
the outbreak of the pandemic.
66. In view of all the above-mentioned considerations, the DRC concluded that Pyramids FC’s
allegations once again had to be rejected.
67. As a consequence, as per its solid jurisprudence as well as in accordance with item 6 of the
employment contract, the DRC decided that Pyramids FC’s persistent and substantial noncompliance of the contractual obligations could justify the unilateral termination of the
contract as well as it can hold the club liable for the breach.
68. Based on the factual and contractual situation, the Chamber unanimously decided that the
player terminated the employment contract with just cause. As such, the DRC concurred that
the club should be liable to the consequences that follow.
ii. Consequences
69. 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 Pyramids FC.
70. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, is equivalent to 4 salaries under the
employment contract (i.e. July, August, September, and October 2021).
71. Furthermore, the DRC further noted that the parties disputed whether the lump sum of EUR
450,000 net due by Pyramids FC to the player by 30 August 2021 should be indeed added
to the calculation.
72. To this extent, the Chamber was observant of Pyramids FC’s allegations as the nature of said
payment (i.e. the loyalty bonus) however concurred with the player’s position according to
which: if the parties intended to condition the payment to the player’s performance or time
at the club, they should have done so in writing. Therefore, in the absence of any express
agreement on the contrary, the DRC determined that the player’s request was contractually
based and should also be awarded as claimed.
73. In accordance with the general legal principle of pacta sunt servanda, the Chamber thus
decided that the Pyramids FC should be liable to pay the player the outstanding remuneration
sought. Additionally, 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 at the
rate of 5% p.a. on the outstanding amounts, as follows:
a. EUR 87,500 net as the salary of July 2021, plus interest as from 1 August 2021;
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b. EUR 450,000 net as the lump sum, plus interest as from 1 August 2021;
c. EUR 87,500 net as the salary of August 2021, plus interest as from 1 September 2021;
d. EUR 87,500 net as the salary of September 2021, plus interest as from 1 October 2021;
e. EUR 87,500 net as the salary of October 2021, plus interest as from 1 November 2021.
74. 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.
75. 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.
76. 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.
77. 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 employment
contract from the date of its unilateral termination until its end date. Consequently, the
Chamber concluded that the amount of EUR 700,000 net (i.e. the salaries from November
2021 until June 2022, EUR 87,500 net each) serves as the basis for the determination of the
amount of compensation for breach of contract.
78. 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
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compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
79. Indeed, the player found employment with Alianza Lima. In accordance with the pertinent
employment contract, the player was entitled to approximately USD 19,045.45 per month
(i.e. USD 3,000 as salary and an average of USD 16,045.45 as fixed payment). Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of
approximately EUR 85,405.30 after conversion.
80. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation of EUR 262,500, i.e. three times the monthly
remuneration of the player of EUR 87,500.
81. The Chamber stressed however that per art. 17 of the Regulations the total amount of
compensation awarded (including any mitigation and additional compensation) cannot
exceed the original residual value of the (early terminated) contract. Accordingly, the
Chamber decided to award only EUR 85,405.30 to the player as additional compensation.
82. 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 EUR 700,000
net to the player (i.e. EUR 700,000 net minus EUR 85,405.30 plus EUR 85,405.30), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
83. 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 the claim (i.e. 4 November 2021) until the date of
effective payment.
iii. Compliance with monetary decisions
84. 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.
85. 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
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duration of the registration ban shall be of up to three entire and consecutive registration
periods.
86. Therefore, bearing in mind the above, the DRC decided that Pyramids FC 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 Pyramids FC in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
87. Pyramids FC 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.
88. 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
89. 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.
90. 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.
91. 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 / Counter-Respondent, Cristian Benavente Bristol, is partially
accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, Pyramids FC, is rejected.
3.
The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, the
following amount(s):
- EUR 87,500 net as outstanding remuneration plus 5% interest p.a. as from 1 August 2021
until the date of effective payment;
- EUR 450,000 net as outstanding remuneration plus 5% interest p.a. as from 31 August
2021 until the date of effective payment;
- EUR 87,500 net as outstanding remuneration plus 5% interest p.a. as from 1 September
2021 until the date of effective payment;
- EUR 87,500 net as outstanding remuneration plus 5% interest p.a. as from 1 October 2021
until the date of effective payment;
- EUR 87,500 net as outstanding remuneration plus 5% interest p.a. as from 1 November
2021 until the date of effective payment;
- EUR 700,000 net as compensation for breach of contract plus 5% interest p.a. as from 4
November 2021 until the date of effective payment.
4.
Any further claims of the Claimant / Counter-Respondent are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
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 / Counter-Claimant 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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7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8.
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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