Labour Disputes
Texto da decisão
REF FPSD-3406
Decision of the
Dispute Resolution Chamber
passed on 15 December 2021
regarding an employment-related dispute concerning the player Jesus
Fernandez Collado
BY:
Michelle Colucci (Italy)
CLAIMANT:
Jesus Fernandez Collado, Spain
Represented by Juan de Dios Crespo Pérez; Alfonso León Lleó and
Gytis Račkauskas
RESPONDENT:
CFR Cluj, Romania
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REF FPSD-3406
I.
Facts of the case
1.
On 28 January 2021, a decision was passed under case ref. nr. 20-01473 in a matter between
the Spanish player, Jesus Fernandez Collado (hereinafter: the Claimant), and the Romanian
club, CFR Cluj (hereinafter: the Respondent)
2.
In this previous case, the claim of the Claimant was based on a settlement agreement
concluded between the parties, by means of which they terminated their employment
relationship and by means of which the Claimant was entitled to receive a total amount of
EUR 133,250 net. However, the Respondent failed to pay (in full) the last two instalments of
the said settlement agreement.
3.
The claim of the Claimant was partially accepted and the Respondent, had to pay to the
Claimant, the following amounts:
“- EUR 20,710 as outstanding remuneration plus 5% interest p.a. as from 3 August 2020
until the date of effective payment.
- EUR 116,540 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 9 October 2020 until the date of effective payment.”
4.
On 14 May 2021, the Claimant, and the Respondent signed a second settlement agreement
(hereinafter: the “agreement”), relating to the FIFA DRC decision case ref. no 20-01473
referred to above.
5.
Clause 1 of the agreement stipulated the following:
“I declare that I unilaterally accept that all my financial rights, established according to the FIFA
DRC Decision communicated on 1 February 2021, pronounced in file no: 20-01473 in which
the parties are the undersigned- FERNANDEZ COLLADO JE (Claimant) and FC CFR 1907
(Respondent), are to be paid by FC CFR in two instalments, as follows:
a) Instalment no. 1, in the amount of 55.000 euro NET (fifty-five thousand euro net), paid by
FC CFR 1907 to me-FERNANDEZ COLLADO JESUS, until the date of 15.07.2021, in the
bank account I provide to the Club;
b) Instalment no. 2 (Final one), in the amount of 55.000 euro NET paid by FC CFR 1907 to
me – FERNANDEZ COLLADO JESUS, until the date of 30.10.2021, in the bank account I
provide to the Club.”
6.
Additionally, clause 1 of the agreement stipulated:
“In case the any payments as per clauses number 1 letter a) and b) of this settlement
agreement are not paid within the relevant time-limits (15.07.2021 and 30.10.2021 ) the CFR
1907 Cluj is obliged to pay to Mr. FERNANDEZ COLLADO JESUS a penalty fee equal of Euro
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1.000,00- (one Thousand Euro Only) per every calendar day of late payment (i.e. as from the
date in which the relevant amounts became due until the date of effective payment).”
7.
According to the Claimant, the Respondent failed to comply with the payment of the first
instalment of EUR 55,000 net which were due on 15 July 2021.
8.
On 22 July 2021, the Claimant sent a default notice to the Respondent reminding it of the
outstanding payment as detailed in the agreement as well as the late penalties stipulated
therein, granting it a deadline of 10 days to comply.
9.
On 16 August 2021, the Respondent paid the first instalment of EUR 55,000. However, the
Respondent failed to pay the penalty fees as provided for in the agreement.
II. Proceedings before FIFA
10. On 25 August 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
11. According to the Claimant, the Respondent delayed its financial obligations, and that the
Respondent violated the settlement agreement.
12. The requests for relief of the Claimant, were that FIFA:
(a) condemn the Respondent to pay him the contractually agreed penalty fees of EUR 31,000
net corresponding to “31 days of late payment, in accordance with the agreement plus
5% interest per annum from 3 August 2020 (day employment contract was terminated)
until the date of effective payment”;
(b) impose a ban on the Respondent, under the provisions of Article 12bis of the FIFA RSTP
and any other disciplinary sanction deemed pertinent;
(c) to condemn the Respondent to provide the Claimant with the relevant tax certificates
attesting the payment of taxes to the competent tax authorities in relation to the
compensation payable to the Claimant;
(d) to order the Respondent to assume the entirety of the FIFA DRC administration and
procedural fees, if any; and
(e) to order the Respondent to reimburse any legal fee that the Claimant spent
13. The Claimant mentioned the following:
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“The amount of EUR 1,000 for 31 days equals EUR 31,000 and therefore is almost the same
amount the Player was awarded in full by the FIFA Decision (together with the EUR 110,000
in the Settlement Agreement) which makes that penalty ENTIRELY PROPORTIONATE as it
compensates the amount the Player was deceitfully induced to waive under the Settlement
Agreement 2 in respect of the FIFA Decision.”
b. Position of the Respondent
14. On 13 September 2021, the claim was sent to the Respondent, however FIFA received an
undeliverable receipt, and the claim was resent to the Respondent on 29 October 2021.
15. In its reply to the claim, the Respondent, indicating that a “penalty clause in a DECLARATION
is not sufficient to engage the liability of Club CFR. In other words, the mere payment of the
first instalment of 55,000 euros does not bind the Club to everything mentioned in it.”
16. The Respondent indicated that the penalty provisions was unilaterally inserted by the Claimant
and it accordingly mentioned “mere silence - inferred from a lack of objections to the content
of the declaration - does not mean tacit acceptance of the penalties set out therein.”
17. Moreover, according to the Respondent the level of the penalties requested by the Claimant
are above the legal limit that the Romanian legislation allows a natural person to collect as
interests for late payments of his receivables.
18. Additionally, the Respondent argued that it cannot be obliged to pay the penalties as the
declaration was not signed by any of the company's directors.
19. The Respondent, therefore, requested that the FIFA Dispute Resolution Chamber issue a
decision in the following terms:
(a) to reject all the claims of Claimant; and
(b) to order the Claimant to assume the entirety of the FIFA DRC administration and procedural
fees, if any.
c. Additional Comments Claimant
20. The Claimant requested to exclude the club’s response to the claim from the case file, as it
was communicated to the FIFA judicial bodies weeks after its time limit had expired.
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III. Considerations of the Single Judge of the Dispute Resolution
Chamber
a. Competence and applicable legal framework
21. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 25 August 2021 and
submitted for decision on 15 December 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), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
22. Subsequently, the Single Judge 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 lit. b) of the Regulations on the Status and Transfer of Players (August 2021 edition in
force on the date of decision), he is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a Spanish
player and a Romanian club.
23. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 25 August 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
24. 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 he 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
25. His 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 he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
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i. Main legal discussion and considerations
26. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties concluded a settlement agreement in terms
of which the Respondent agreed to pay to the Claimant the total net amount of EUR 110,000
in two instalments as follows:
- EUR 55,000 net by 15 July 2021- (“first instalment”); and
- EUR 55,000 net by 30 October 2021 – (“second instalment”).
27. The Single Judge noted that the settlement agreement was signed in the context of the
Claimant’s previous claim in front of FIFA against the Respondent, under case ref. nr. 2001473.
28. The Single Judge further noted that the Claimant requested to be awarded the amount of
EUR 31,000 on the basis of the penalty clause agreed to in the settlement agreement, arguing
that the Respondent had not paid the first instalment of the agreed amount on the respective
due date.
29. Moreover, the Single Judge observed that the Claimant requested that the Respondent’s reply
to the claim be disregarded. In this regard the Single Judge recalled that the FIFA
administration sent the claim to the Respondent for a second time and therefore deemed
that since the claim was notified a second time, the Respondent’s reply to the claim was
received within the given deadline.
30. Subsequently, with the above-mentioned considerations in mind, the Single Judge focused
its attention on the penalty clause in clause 1 of the settlement agreement, in light of the
Respondent having paid the first instalment of EUR 55,000, after the respective deadline for
payment had fallen due and the Claimant’s pertinent request.
31. The Single Judge took note that the Respondent in its reply argued that it did not agree to
the said penalty clause and that the level of the penalty requested by the Claimant was above
the legal limit allowed under Romanian law.
32. The Single Judge acknowledged the arguments of both parties in respect of the penalty clause
and referred to its constant jurisprudence, in accordance with which penalty clauses may be
freely entered into by the 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 Chamber further 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 it shall also be taken into consideration.
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33. In the matter at hand, the Single Judge remarked that in clause 1 of the settlement
agreement, the Claimant and Respondent indeed agreed to the said penalty amount of EUR
1,000 per day.
34. In this context, the Single Judge observed that the Respondent was 31 days late with payment
of the first instalment, and therefore taking the penalty rate into consideration for the period,
16 July 2021 until 16 August 2021 (31 days), this would amount to EUR 31,000.
Consequently, and considering that the first instalment due to the Claimant is the amount of
EUR 55,000, the Single Judge established that the penalty fee of EUR 31,000 for a delay of
31 days is in fact a hidden interest rate, which on a yearly basis would correspond to an
interest rate of more than 600%. Said percentage is to be considered clearly disproportionate
and excessive
35. In view of the foregoing, the Single Judge considered that the interest rate provided for in
clause 1 of the settlement agreement concluded between the parties was disproportionate
and unreasonable, and should be reduced to the maximum interest allowed under Swiss law,
i.e., 18% p.a.
ii. Consequences
36. Having stated the above, the Single Judge decided to award the Claimant an interest rate of
18% interest p.a. on the late first instalment of EUR 55,000 net, for the period between 16
July 2021 until 16 August 2021, accordingly the Respondent has to pay to the Claimant the
amount of EUR 825.
37. With regard to the Claimant’s request for interest of 5% p.a. on the amount owed, the Single
Judge referred to the jurisprudence of the Dispute Resolution Chamber in similar cases and
concluded that the Claimant’s request for default interest on a penalty fee must be rejected.
38. The tax certificates as requested by the Claimant can be awarded, since the amounts the
Claimant was entitled to, are “net of withholding taxes”. In this respect, the DRC referred
to the relevant clauses in the contract, which clearly stipulate that the amounts to paid by the
club to the Claimant are net amounts. As a result, the DRC deemed that the Claimant had a
justified reason to be awarded the relevant tax certificates.
iii. Compliance with monetary decisions
39. 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 his 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.
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40. 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.
41. 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.
42. 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.
43. 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
44. 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.
45. 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.
46. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Single Judge of the Dispute Resolution Chamber
▪
1.
The claim of the Claimant, Jesus Fernandez Collado, is partially accepted.
2.
The Respondent, CFR Cluj, has to pay to the Claimant, the amount of EUR 825, i.e. 18%
interest p.a. on the amount of EUR 55,000 net as from 16 July 2021 until 16 August 2021.
3.
The Respondent is ordered to provide the Claimant with the tax certificates.
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. 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.
7. 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.
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
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