Labour Disputes
Texto da decisão
REF FPSD-7393
Decision of the
Dispute Resolution Chamber
passed on 10 November 2022
regarding an employment-related dispute concerning the player BERNARD
ANICIO CALDEIRA DUARTE
COMPOSITION:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Stijn Boeykens (Belgium), member
CLAIMANT:
BERNARD ANICIO CALDEIRA DUARTE, Brazil
Represented by Breno Costa Ramos Tannuri
RESPONDENT:
Sharjah, United Arab Emirates
Represented by Ivan Ostojic
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I. Facts of the case
1.
On 22 July 2021, the Brazilian player, BERNARD ANICIO CALDEIRA DUARTE (hereinafter:
Claimant or player) and the Emirati club, Sharjah (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract) valid as from the date of
signature until 30 June 2023.
2.
According to the contract, the Respondent undertook to pay the Claimant the total
amount of EUR 5,400,000 during the contractual relationship.
3.
On 31 August 2022, the parties concluded an agreement to terminate the contract
(hereinafter: termination agreement).
4.
According to the termination agreement, the Respondent undertook to pay the Claimant
the following amounts:
- EUR 412,500 on 31 August 2022;
- EUR 412,500 on 1 November 2022;
- EUR 412,500 on 1 February 2023;
- EUR 412,500 on 1 April 2023.
5.
Furthermore, the termination agreements establishes: “If the CLUB fails to make the
payment of any of aforementioned instalments to the PLAYER on the agreed due dates, then
all remaining instalments of the TERMINATION AMOUNT shall become due immediately.
Further, the PARTIES herein agree that a penalty of 10% shall accrue on the total outstanding
amount, plus default interest at the rate of 1% per month on the total outstanding amount as
from the first date of default until the date of effective payment. The CLUB hereby agrees that
it shall not dispute the penalty and default interest applicable herein since they are result from
an express negotiation between the Parties within the circumstances involving the matter at
hand.”
II. Proceedings before FIFA
6.
On 8 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
7.
In his claim, the requested the following amounts:
- EUR 1,650,000 as outstanding amounts resulting from the termination
agreement, along with interest of 12% p.a. as of 1 September 2022;
- EUR 165,000 as penalty fee in accordance with art. 3.3. of the termination
agreement, plus 5% interest p.a. as of 1 September 2022.
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8.
The player argued that the Respondent failed to remit the first instalment resulting from
the termination agreement on 31 August 2022 and in accordance with the acceleration
clause established in the termination agreement the total amount fell due.
9.
Furthermore, the Claimant held being entitled to a penalty of 10% of the outstanding
amounts, as established in art. 3.3 of the termination agreement. According to the
Claimant such penalty is fair and proportional.
b. Position of the Respondent
10. In its reply, the Respondent rejected the claim.
11. According to the club, the claim was submitted “prematurely” as the payment of the first
instalment was remitted on 12 September 2022, i.e. before the club was notified of the
present claim.
12. The club held that the player did not put the club in default and only 8 days after the first
instalment had fallen due, the player lodged a claim in front of FIFA.
13. Moreover, the club maintained that the player did not comply with the requirements of
Art. 12bis RSTP, as the outstanding amount was not overdue.
14. In this context, the Respondent argued that the penalty is excessive and abusive.
c. Player’s reaction to alleged payment
15. In this context, the player acknowledged receipt of the payment of AED 1,518,000 on 12
September 2022 for the first instalment. However, since the amount due was EUR
412,500, the player held that due to the conversion EUR 2,162 remained unpaid.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 08 September 2022 and
submitted for decision on 10 November 2022. Taking into account the wording of art. 34
of the June 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.
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2.
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 July 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 Brazilian player
and an Emirati club.
3.
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 (July 2022 edition), and
considering that the present claim was lodged on 08 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 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
5.
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.
i. Main legal discussion and considerations
6.
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 claimed payment resulting from the termination agreement or not.
7.
The Chamber therefore concluded that its task was to decide if the club complied with
the termination agreement and/or if there was a penalty to be applied.
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8.
According to the player, the club failed to remit the first instalment of the termination
agreement falling due on 31 August 2022. In this regard, based on the acceleration clause
in art. 3.3 of the termination agreement, the player argued that the total amount fell due
on 1 September 2022.
9.
The Respondent acknowledged that it remitted the first instalment late (on 12 September
2022), but it argued that due to the short time frame between the due date, the actual
payment and the claim, the requests of the player shall be rejected.
10. In this framework, the DRC started to analyse the content of the termination agreement
and concluded that due to the clear wording in art. 3.3. of the termination agreement, the
partied validly agreed upon the acceleration clause and therefore, the total amount of
EUR 1,650,000 fell due on 1 September 2022, since a partial payment of the first
instalment was only remitted on 12 September 2022.
ii. Consequences
11. Having stated the above, and taking into account that the player acknowledged the partial
payment of AED 1,518,000 (corresponding to EUR 411,014 on 12 September 2022), the
members of the Chamber established that the amount of EUR 1,486 remained unpaid
from the first instalment and therefore the total amount of EUR 1,238,986 (EUR 1,237,500
plus EUR 1,486) is due to the player.
12. Moreover, the DRC noted that the parties agreed upon an interest rate of 12% p.a., which
shall be granted as of 2 September 2022.
13. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent has to remit the amount of EUR 1,238,986 to the Claimant.
14. Moreover the Chamber took note that the parties agreed in art. 3.3. of the termination
agreement on a penalty of 10% on the outstanding amounts.
15. In this regard, the Chamber recalled the jurisprudence of the Football Tribunal 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. Accordingly, it shall be added
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.
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16. The members of the Chamber concluded that, in the specific case at hand, a penalty of
10% on the outstanding amounts appears to be proportional and reasonable. Therefore,
the DRC decided to award the amount of USD 165,000 as a penalty to the Claimant. The
penalty shall be calculated on the total amount outstanding on 1 September 2022 (EUR
1,650,000).
17. In accordance with the long-standing jurisprudence of the Football Tribunal, no Interest
shall be granted on penalties.
iii. Compliance with monetary decisions
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
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d. Costs
23. 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.
24. 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.
25. 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, BERNARD ANICIO CALDEIRA DUARTE, is partially accepted.
2.
The Respondent, Sharjah, has to pay to the Claimant EUR 1,238,986 as outstanding
amount and EUR 165,000 as penalty. Furthermore, the Respondent has to pay the
following interest:
- 12% interest p.a. on the amount of EUR 1,650,000 as from 2 September 2022 until 12
September 2022;
- 12% interest p.a. on the amount of EUR 1,238,986 as from 12 September 2022 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, 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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