Labour Disputes
Texto da decisão
REF FPSD-8214
Decision of the
Dispute Resolution Chamber
passed on 15 February 2023
regarding an employment-related dispute concerning
the player Brian Leonel Benítez
BY:
Angela COLLINS (Australia)
CLAIMANT:
Brian Leonel Benítez, Argentina
RESPONDENT:
Club OF Ierapetras 1970, Greece
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REF FPSD-8214
I. Facts of the case
1. The player Brian Leonel Benítez and the club O.F. Ierapetras 1970 concluded an
employment contract valid as from 30 August 2021 until 30 June 2022.
2. According to art. 4 of the contract, the player was entitled to the following:
- EUR 726 as monthly salary,
- EUR 3,500 as rent, to be paid in 10 instalments of EUR 350 between 30 September 2021
until 30 June “2021”;
- EUR 3,500 as food, to be paid in 10 instalments of EUR 350 between 30 September 2021
until 30 June “2021”.
3. The contract further stipulated the following:
“In addition to the above monthly regular salaries, PAE is obliged to pay the foot ball player a
Christmas gift (an amount equal to the monthly regular salary) and an Easter gift (an amount
equal to half of the monthly regular salary), as well as a leave allowance (an amount equal to
half of the monthly regular salary).”
4. Clause 10 of the contract stipulated the following:
“10. Dispute resolution
Any dispute between the parties is resolved by the Primary Committee for the Resolution of
Financia! Disputes and in the second instance by the Court of Arbitration of the H.F.F. Disputes
concerning foreign football players may be resolved by the relevant FIFA bodies.”
5. The player allegedly sent an undated default notice, granting 15 to “regularize the reported
debt”.
II. Proceedings before FIFA
1. On 22 November 2022, the player lodged a claim before for outstanding remuneration
and requested the payment of EUR 13,930 plus default interest (5%) and costs.
2. The player provided the following calculation:
ENTITLED AMOUNTS
AMOUNT
INSTALMENTS
TOTAL
SALARY
EUR 726
12
8,712
RENT
EUR 3,500
10
3,500
FOOD
EUR 3,500
10
3,500
CHRISTMAS
EUR 726
1
726
EASTER
EUR 363
1
363
LEAVE
EUR 363
1
363
TOTAL
17,164
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REF FPSD-8214
PAID AMOUNTS
DATE
PAID AMOUNT
15/10/2021
EUR 500
1/11/2021
EUR 634
22/11/2021
EUR 234
28/12/2021
EUR 132
29/12/2021
EUR 1,334
30/4/2022
EUR 400
TOTAL PAYMENTS
EUR 3,234
3. In its reply, the Respondent contested the competence of FIFA and referred to art. 10 of the
contract.
4. The Respondent argued that CAS has already confirmed that the relevant deciding body of
the HFF (Hellenic Football Federation) fulfils the requirements of equal representation and
of an independent chairman and guarantees fair proceedings,
5. As to the substance, the club argued that the player’s basic gross salary is EUR 726 or net
634.
6. The club attached a series of receipts in Greek only.
7. The club acknowledged a debt of EUR 6,072, detailed in the following manner:
“5.336 EUROS SALARIES ( 1334 * 4 – MARCH TO JUNE)
419 EUROS (The Club has paid 132 euros AND THE CONTRACT SAYS FULL BASE SALARY)
We didn’t owe the easter bonus as 400 euros has been paid and the contract refers the half of
the base salary, concluding 317euros
The rest 83 euros relating to the Christmas bonus, as well as the amount of 317 euros as
allowance bonus)”
8. In his replica, the Claimant insisted on the competence of FIFA and underlined that clause
10 of the contract further stipulates that “disputes concerning foreign football players may be
resolved by the relevant FIFA bodies.”
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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 Single Judge or Judge) 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 22
November 2022 and submitted for decision on 15 February 2023. 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), the Dispute
Resolution Chamber is in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
Argentinean 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, it 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 22 November 2022, the October
2022 edition edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Admissibility
4.
The Single Judge further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the National Dispute Resolution Chamber of Greece
(hereinafter: the NDRC of Greece), alleging that the latter is competent to deal with any
dispute deriving from the relevant employment contract, in accordance with its clause 10.
5.
The Single Judge also noted that the Claimant insisted on the competence of FIFA to
adjudicate the present claim, sustaining that clause 10 of the contract actually stipulates
that “disputes concerning foreign football players may be resolved by the relevant FIFA bodies.”
6.
Taking into account all the above, the Single Judge emphasised that in accordance with
art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in
principle, competent to hear an employment-related dispute between a club and a player
of an international dimension. Nevertheless, the parties may explicitly opt in writing for
such dispute to be decided by an independent arbitration tribunal that has been
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REF FPSD-8214
established at national level within the framework of the association and/or a collective
bargaining agreement. Any such arbitration clause must be included either directly in the
contract or in a collective bargaining agreement applicable on the parties. The
independent national arbitration tribunal must guarantee fair proceedings and respect
the principle of equal representation of players and clubs. Equally, the Single Judge
referred to the principles contained in the FIFA National Dispute Resolution Chamber
(NDRC) Standard Regulations, which came into force on 1 January 2008.
7.
In this context, Single Judge pointed out that she should first analyse whether the
employment contract at the basis of the present dispute contained a clear and exclusive
jurisdiction clause in favour of the NDRC of Greece.
8.
In this respect, the Single Judge noted that the contract at the basis of the dispute did
indeed stipulated that “Any dispute between the parties is resolved by the Primary Committee
for the Resolution of Financial Disputes and in the second instance by the Court of Arbitration
of the H.F.F.”, but that it also stipulated an exception for foreign players, as follows:
“Disputes concerning foreign football players may be resolved by the relevant FIFA bodies.”
9.
As a consequence, the Single Judge was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, since the dispute pertains to an
Argentinean player employed by a Greek club, and thus falls under the specific exception
stipulated in clause 10 of the contract. Therefore, without the need to enter the analysis
of any further requirement, she established that the Respondent’s objection to the
competence of FIFA to deal with the present matter has to be rejected and that the
Dispute Resolution Chamber is competent, on the basis of art. 22 par. 1 lit. b) of the
Regulations, to consider the present matter as to the substance.
c. Burden of proof
10. 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 she may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
d. Merits of the dispute
11. Her 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 it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
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REF FPSD-8214
i. Main legal discussion and considerations
12. The foregoing having been established, the Single Judge noted that the parties concluded
an employment contract valid as from 30 August 2021 until 30 June 2022.
13. Subsequently, the Single Judge noted that the Claimant lodged a claim for outstanding
remuneration and requested the total amount of EUR 13,930 (cf. point I 6 above).
14. On the other hand, the Single Judge took note of the club’s position, according to which
the player’s basic gross salary is EUR 726 or net 634. The Judge also observed that the
club attached a series of alleged receipts in Greek only.
15. In this context, the Judge acknowledged that her task was to determine the exact debt of
the club towards the player, if any.
16. In this respect, and as to the receipts provided in the Greek language only, the Judge
referred to art. 13 par. 1 of the Procedural Rules, according to which “Any submission to
FIFA shall be made in English, Spanish, or French. Any submission to FIFA not made in one of
the aforementioned languages will be disregarded”. As a result Single Judge established that
it could not take said documentation into account.
17. In addition, and as to the allegation that the player’s basic gross salary is EUR 726 or net
634, the Single Judge noted that the club did not provide any evidence about the tax rate
and, as a result, she established all remuneration shall be paid as gross amount.
18. Thus, given the lack of valid evidence provided by the club, the Judge decided to partially
accept the player’s claim on the basis of the payments he acknowledged, as follows:
Month
Salary
Housing
Food
Club payments
Due (Entitlement minus paid)
Sep 21
726
350
350
Oct 21
726
350
350
500
926
Nov 21
726
350
350
868
558
Dec 21
726
350
350
1466
-40
Christmas
726
Jan 22
726
350
350
1426
Feb 22
726
350
350
1426
Mar 22
726
350
350
Apr 22
726
350
350
Easter
Leave
TOTAL:
1426
726
363
1426
400
1026
363
May 22
726
350
350
1426
Jun 22
726
350
350
1426
363
363
12.478
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REF FPSD-8214
19. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amount of EUR 12,478, which is outstanding under the contract and as explained above.
20. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from the due dates until the date of
effective payment.
ii. Compliance with monetary decisions
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
e. Costs
26. 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
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agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs
were to be imposed on the parties.
27. 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.
28. Lastly, the Single Judge concluded her 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, Brian Leonel Benítez, is admissible.
2.
The Claim of the Claimant is partially accepted
3.
The Respondent, O.F. Ierapetras 1970, has to pay to the Claimant, the following amounts:
- EUR 12,478 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount EUR 1,426 of as from 1 October 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 926 of as from 1 November 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 558 of as from 1 December 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 686 of as from 1 January 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 1,426 of as from 1 February 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 1,426 of as from 1 March 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 1,426 of as from 1 April 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 1,389 of as from 1 May 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 1,426 of as from 1 June 2022 until the date of effective payment;
- 5% interest p.a. over the amount EUR 1,789 of as from 1 May 2022 until the date of effective payment;
4.
Any further claims of the Claimant 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 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.
7.
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.
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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