Labour Disputes
Texto da decisão
REF FPSD-669
Decision of the
Dispute Resolution Chamber
passed on 6 October 2021
regarding an employment-related dispute concerning the player Jonathan
Bustos
BY:
Alexandra Gómez Bruinewood (Uruguay & the Netherlands)
CLAIMANT:
Jonathan Bustos, Argentina
Represented by Filip Jovovic
RESPONDENT:
AEL Larissa FC, Greece
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I.
Facts of the case
1.
On 13 August 2019, the Argentinian player, Jonathan Bustos (hereinafter: the Claimant), and
the Greek club, AEL Larissa FC (hereinafter: the Respondent) signed an employment contract
valid as from said date until 30 June 2022.
2.
On 17 July 2020, the parties agreed on the mutual termination of the employment contract
(hereinafter: the termination agreement or the contract)
3.
Pursuant to clause 2 of the “Preamble” to the termination agreement, the Parties stipulated
to agree on the mutual termination of the aforementioned employment contract without any
demand or financial requirements, except for the net amount of EUR 11,000 which were to
be paid by the Respondent to the Claimant in two instalments as follows:
Amount of EUR 6,000 on 17 July 2020;
Amount of EUR 5,000 on 31 August 2020.
4.
Furthermore, clause 3 of the Preamble to the termination agreement provided that “if the
Club fails to pay any of the instalments under Clause 2 on due time, the Player shall send to
the Club a written demand by fax or email and after the expiration of 5 days, the total
remaining sum at that time owed by the Club (excluding the sum that is already paid)
becomes automatically due and payable to the Player in full and the Player shall have the
express right to launch legal proceedings against the Club (…)”
5.
Moreover, the same clause 3 prescribed the following:
(...) “It is also agreed that after the expiration of the above deadline set by the PLAYER, the
CLUB shall also have to pay to the PLAYER as a penalty clause the amount of 100 euro for
each day of delay and until the owed amount is fully paid off, a clause that from today the
CLUB accepts clearly and unconditionally as fair and reasonable.”
6.
By means of letter dated 7 October 2020, the Claimant put the Respondent in default of
payment of EUR 5,000 as outstanding amount in connection with the termination agreement.
7.
On 22 October 2020, the Respondent transferred EUR 2,000 to the bank account of the
Claimant.
8.
On 26 October 2020, the Claimant put once again the Respondent in default of the amount
of EUR 5,000 plus additional EUR 5,200 as “liquidated damages” accrued as of 5 September
2020.
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II. Proceedings before FIFA
9.
On 20 January 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
10. In its claim, the Claimant argued the partial noncompliance by the Respondent with the
financial obligations set under the termination agreement.
11. In particular, according to the Claimant, the Respondent shall be held liable for the incomplete
payment of the second instalment originally amounting to EUR 5,000 and due within 31
August 2020 as well as for the related 137 days of delay, which would correspond to an
accrued penalty interest of EUR 13,700 in accordance with clause 3 of the Preamble to the
termination agreement.
12. The requests for relief of the Claimant, therefore, were the following:
EUR 3.000,00 as outstanding second instalment, due as of 31 August 2020;
EUR 13.700,00 as penalty clause accrued from 1 September 2020 to 15 January 2021;
Annual 5% interest to apply as of each due date until effective payment.
b. Position of the Respondent
13. Despite having been invited by the FIFA general secretariat to provide its position on the claim,
the Respondent failed to reply.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on 20 January 2021
and submitted for decision on 6 October 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), said edition of the Procedural Rules is applicable to the
matter at hand.
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15. 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 (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 an Argentinian player and a Greek club.
16. 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 Player (August 2021 edition) and
considering that the present claim was lodged on 20 January 2021, the January 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
17. 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).
c. Merits of the dispute
18. The 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 she will refer only to the facts, arguments and documentary evidence, which
she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
19. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the Respondent failed to present its response to the
claim, in spite of having been invited to do so. the FIFA Administration with its position to the
claim.
20. By not presenting its position to the claim, the Single Judge found that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
21. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concurred that in accordance with art. 21 par. 1 of the Procedural Rules, she shall take a
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decision upon the basis of the documentation already on file; in other words, upon the
statements and documents presented by the Claimant.
22. In view of the above, the Single Judge established that the Respondent has partially failed to
pay the Claimant the second instalment agreed under clause 2 of the “Preamble” to the
termination agreement dated 17 July 2020, hence the amount of EUR 3,000 remains
outstanding.
23. Therefore, on the basis of the principle pacta sunt servanda, the Respondent shall pay the
Claimant the sum of EUR 3,000.
24. Furthermore, the Single Judge acknowledged that under clause 3 of the Preamble, the Parties
agreed on the payment by the Respondent of EUR 100 as penalty fee for each day of delay
in the payment of the instalments due by the latter to the Claimant.
25. In particular, the Single Judge took note that the Claimant imputed the Respondent for 137
days of delays, namely as of the date following the deadline for the payment of the second
instalment (i.e. 1 September 2020) until 15 January 2021 (fifth to last day in which the claim
has been lodged), for a total amount of EUR 13,700 (100*137).
26. In this respect, the Single Judge deemed it appropriate to stress that penalty clauses, in
principle, may be freely entered into by the contractual parties and may be considered
acceptable, in the event that the pertinent written clause meets certain criteria such as
proportionality and reasonableness. In this respect, the Single Judge highlighted that in order
to determine as to whether a penalty clause is to be considered acceptable, the specific
circumstances of the relevant case brought before the deciding body shall also be taken into
consideration.
27. In this regard, the Single Judge outlined that the alleged penalty clause is de facto an hidden
interest clause, at a rate of roughly 450% per year.
28. As a result, the Single Judge found that such interest rate provided in clause 3 of the Preamble
to the termination agreement is clearly excessive and disproportionate as per the wellestablished practice of the Football Tribunal and in accordance with the jurisprudence of the
DRC
29. Taking into account the foregoing circumstances, as well as the jurisprudence of the DRC in
this respect, the Single Judge determined that the relevant interest rate had to be reduced to
18% p.a. on the amount of EUR 3,000 as of 1 September 2020 until the date of effective
payment.
30. In conclusion, the Single Judge decided to partially accept the claim of the Claimant.
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ii. Compliance with monetary decisions
31. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
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.
32. 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.
33. 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. 24bis par. 2, 4, and 7 of the Regulations.
34. 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.
35. 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. 24bis par.
8 of the Regulations.
d. Costs
36. 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.
37. 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.
38. Lastly, the Single Judge 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, Jonathan Bustos, is partially accepted.
2.
The Respondent, AEL Larissa FC, has to pay to the Claimant, the following amount:
EUR 3,000 as outstanding remuneration plus 18% interest p.a. as from 1 September 2020
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. 24bis 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 the ban shall
be of 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. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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