Labour Disputes
Texto da decisão
REF FPSD-7147
Decision of the
Dispute Resolution Chamber
passed on 27 October 2022
regarding an employment-related dispute concerning the player Andrés Eliseo Chavez
COMPOSITION:
Lívia SILVA KÄGI (Brazil), Deputy Chairperson
Mario FLORES CHEMOR (Mexico), member
Johan VAN GAALEN (South Africa), member
CLAIMANT:
Andrés Eliseo Chávez, Argentina
Represented by Dr Fernando Daniel Baredes
RESPONDENT:
AEL Limassol, Cyprus
Represented by Lysandrou, Florou LLC
REF FPSD-7147
I. Facts of the case
1. On 17 August 2021, the player Andres Eliseo Chavez and AEL Limassol concluded an employment
contract valid as from 17 August 2021 until 31 May 2022.
2. According to art. 1.3.1. of the contract, the player was entitled to a monthly salary of EUR 10,285
gross or EUR 9,500 net, to be paid from 31 August 2021 until 31 May 2022.
3. In addition, on the same date, the parties concluded an image rights contract.
4. According to the image rights contract, the player was entitled to the following:
REF FPSD-7147
5. According to the player, his agent explained him that a mutual termination agreement was concluded.
6. A copy of said agreement was attached by the player and the club, with the following contents:
“l. The employment of the PIayer is terminated with immediate effect. By the signing of this agreement both
parties declare that this is the one and only valid agreement between the two parties.”
7. On 7 January 2022, the legal representative of the player sent the following letter:
“in attention to your silence to the notification sent on January 4th 2022 (…) and the refusal of your club to
allow the player to develop his work , maintaining the absolute refusal of the false signature imputed to him
in the supposed termination agreement (…) I intimate you for the last time (…) and allow to resume the
activity agreed in the contract (…)
You are duly intimidated and notified”
8. On 13 January 2022, the legal representative of the player sent a termination letter, while referring to
his previous default notices.
9. According to the information contained in the Transfer Matching System (TMS), on 3 February 2022,
the player transferred “out of contract” from AEL Limassol to the Bolivian club, Jorge Wilstermann.
10. In this respect, a copy of the termination agreement was attached as “proof of last contract”.
11. The player concluded an employment contract with Jorge Wilstermann, valid as from 10 January
2022 until 31 December 2022, for a monthly salary of USD 15,000 (from January to May 2022, the
player would earn 5*15,000 = USD 75,000).
REF FPSD-7147
II. Proceedings before FIFA
12. On 22 August 2022, the player Andres Eliseo Chavez lodged a claim before for and requested the
payment of EUR 92,350 detailed as follows:
EUR 57,000, corresponding to salaries from December 2021 until May 2022 (9,500*6);
EUR 28,000, arising from the image rights contract (4,000*7)
EUR 4,050 (12*300 and 3*150) as bonuses according to annexe 5
EUR 3,300 as air tickets (return):
13. In its reply, the club argued that the contract was terminated by mutual agreement on 3 January
2022.
14. The club asserted that the player signed the termination agreement personally in Cyprus, and
presented the written witness statements signed by the following persons:
Mr Theodoros Antoniou, General Manager of the club,
Mrs Marina Christodoulou, Administration Officer of the Club;
Costas Hadjipsalis, Player’s intermediary.
15. In the opinion of the club, the claimant’s position as to the alleged forgery cannot be accepted sinc
(a) the player never objected until lodging the present claim and (b) the player’s signature is identical
to the one in the other agreements.
16. The Respondent considered that the FIFA DRC shall not take into account “the alleged Image Rights
Contract” in the matter at stake does not contain any employment-related elements.
17. The club considered that the image rights agreement concerns image rights agreement whereby the
Claimant has assigned his intellectual property and private right to the Respondent for a specific
period under a specific consideration.
18. In his replica, the player insisted in his initial request.
REF FPSD-7147
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 the Chamber) 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 August 2022 and submitted for decision on 27 October 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.
2.
Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2022 edition), it is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international dimension
between an Argentinean player and a Cypriot 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 (June 2022 edition), and considering that the
present claim was lodged on 22 August 2022, the June 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.
5.
Admissibility
The Chamber noted that the present matter involves an “employment contract” dated 17 August
2021, as well as so-called “image rights contract”.
6.
In this regard, the Chamber recalled that, as a general rule, if there are separate agreements, the
DRC tends to consider the agreement on image rights as such and does not have the competence
to deal with it. However, such conclusion might be different if specific elements of the separate
agreement suggest that it was in fact meant to be part of the actual employment relationship. In the
case at hand, such elements appear to exist. In particular, the agreement contains inter alia
REF FPSD-7147
stipulations regarding a monthly salary that was payable “for the period of employment”.
Consequently, the Chamber decided not to consider the image rights agreement as such, but
determined that said agreement was in fact an additional agreement to the employment contract
instead.
d. Merits of the dispute
7.
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 abovementioned 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
8.
The Chamber first recalled that the player was engaged by the club on 17 August 2021, according to
which he was entitled to the economic conditions quoted in points I 2 and I 4 above.
9.
Thereafter, the Chamber noted that the player lodged a claim, by means of which he requested the
payment of outstanding remuneration, as follows:
-EUR 57,000, corresponding to salaries from December 2021 until May 2022 (9,500*6);
-EUR 28,000, arising from the image rights contract (4,000*7)
-EUR 4,050 (12*300 and 3*150) as bonuses according to annexe 5
-EUR 3,300 as air tickets (return)
10. On the other hand, the Chamber acknowledged the position of the Respondent, which argued that
the contract was terminated via a mutual agreement on 3 January 2022.
11. On this note, the Chamber noted that the player asserted that said agreement was forged.
12. In relation to said argument, the Chamber deemed appropriate to remind the parties that, generally,
FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the one of
alleged falsified signatures of documents, and that such affairs fall into jurisdiction of the competent
national criminal authority.
13. In relation to said argument, the Chamber also verified that the Respondent submitted via a post
the alleged original of the mutual termination agreement.
14. After a thorough analysis of the evidence provided by the parties and, in particular, of the document
sent via post, the Chamber concluded that, in spite of the remarks made by the player, there was
no substantial evidence that the consent given by the club was forged.
REF FPSD-7147
15. What is more, the Chamber also verified the information contained in the TMS, and noted that said
agreement was uploaded into TMS when the player transferred to a new club.
16. In addition, the Chamber also observed that the contract with the new club (cf. point I 9 et seq.
above) was valid as from 10 January 2022, i.e. only a week after the termination agreement with the
Respondent
17. Consequently, the Chamber unanimously decided to set aside the player’s argumentation in this
regard. Thus, the mutual termination agreement had to be considered as valid and binding.
18. The foregoing having been said, the Chamber entered into the analysis of the contents of the mutual
termination agreement, and noted that it contained the following:
“l. The employment of the PIayer is terminated with immediate effect. By the signing of this agreement
both parties declare that this is the one and only valid agreement between the two parties.”
19. In the opinion of the Chamber, and after reviewing its contents, said document indeed implied the
termination of the contract as from its signature (3 January 2022), but did not imply that the player
waived his remuneration until said date. As a result, the Chamber established that the player is
entitled to his outstanding salaries until the date of termination of the contract, i.e. 3 January 2022.
20. In this regard, and after duly examining the claim of the player as well as the position of the club,
the Chamber arrived to the conclusion that the following amounts appear to be outstanding:
EUR 9,500, corresponding to the player’s salary of December), arising from the “employment
contract”
EUR 8,000, corresponding to two instalments arising from the “image rights agreement”, for the
months of November and December 2021 (i.e. 4,000*2)
21. In relation to said amounts, the Chamber observed that the club did not provide any evidence as to
their payment.
22. Consequently, in strict application of the principle of pacta sunt servanda, the Chamber established
that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 17,500, as
detailed above.
23. In addition, the Chamber rejected the player’s request for bonuses and for flight tickets, as the player
did not provide sufficient evidence.
ii. Compliance with monetary decisions
24. 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
REF FPSD-7147
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.
25. In this regard, the Chamber highlighted that, against players, the consequence of the failure to pay
the relevant amounts in due time shall consist of a restriction on playing in official matches up until
the due amounts are paid. The overall maximum duration of the restriction shall be of up to six
months.
26. Therefore, bearing in mind the above, the Chamber decided that the player must pay the full amount
due (including all applicable interest) to the club within 45 days of notification of the decision, failing
which, at the request of the creditor, a restriction on playing in official matches for the maximum
duration of six months shall become immediately effective on the player in accordance with art. 24
par. 2, 4, and 7 of the Regulations.
27. The player shall make full payment (including all applicable interest) to the bank account provided
by the club in the Bank Account Registration Form.
28. The Chamber 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
29. 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.
30. Furthermore, 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.
31. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-7147
IV Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Andrés Eliseo Chavez, is partially accepted.
2.
The Respondent, AEL Limassol, has to pay to the Claimant, the outstanding amount of EUR 17,500.
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
REF FPSD-7147
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