Labour Disputes
Texto da decisão
REF. FPSD-15845
Decision of the
Dispute Resolution Chamber
passed on 1 October 2024
regarding an employment-related dispute concerning
the player Jonatan Cristaldo
BY:
Khadija TIMERA (Senegal)
CLAIMANT:
Jonatan Cristaldo, Argentina
Represented by Breno Costa Ramos Tannuri
RESPONDENT:
CD Oriente Petrolero, Bolivia
pg. 2
REF. FPSD-15845
I. Facts of the case
1.
On 13 January 2023, the Argentinian player, Jonatan Cristaldo (hereinafter: the Claimant or
the Player), and the Bolivian club, CD Oriente Petrolero (hereinafter: the Respondent or the
Club), signed an employment contract (hereinafter: Contract) valid as from the date of the
signature until 31 December 2023.
2.
On 22 May 2024, the parties concluded a document titled “Reconocimiento de deuda y
compromiso de pago”, which freely translated into English is ”Acknowledgement of debt
and commitment to pay” (hereinafter: Agreement).
3.
In clause 2 of the Agreement, the following was established:
“SEGUNDA: RECONOCIMIENTO DE DEUDA. El objeto del presente documento consiste en
que ORIENTE PETROLERO reconoce adeudarle el monto señalado en el punto 1.11 de la
anterior cláusula que asciende al monto de USD 45.032,22 (CUARENTA Y CINCO MIL
DOLARES ESTADOUNIDENSES CON 22 CENTAVOS DE DÓLAR ESTADOUNIDENSE), por los
conceptos descrito en la cláusula primera y se compromete a pagar los mismo mediante
un plan de pagos que se expondrá en la cláusula siguiente y la cual según acuerdo entre
partes podrá ser pagado ya sea en moneda extranjera (dólar estadounidense) o en
moneda nacional (Bolivianos) tomando en cuenta el tipo de cambio establecido por el
Banco Central de Bolivia.”
Freely translated into English:
“SECOND: ACKNOWLEDGEMENT OF DEBT. The purpose of this document is that ORIENTE
PETROLERO acknowledges owing the amount indicated in point 1.11 of the previous
clause amounting to the sum of USD 45,032.22 (FORTY FIVE THOUSAND UNITED STATES
DOLLARS AND 22 CENTS OF UNITED STATES DOLLAR), for the concepts described in the
first clause and undertakes to pay the same through a payment plan that will be set out
in the following clause and which according to agreement between the parties may be
paid either in foreign currency (U.S. dollar) or in national currency (Bolivianos) taking into
account the exchange rate established by the Central Bank of Bolivia.”
4.
In clause 3, the parties arranged the following payment schedule (quoted verbatim):
“TERCERA: FORMA DE PAGO.
LAS PARTES acuerdan que ORIENTE PETROLERO le pagará a EL JUGADOR el monto
adeudado en 5 cuotas iguales conforme se describe en el siguiente cuadro:
pg. 3
REF. FPSD-15845
Numero de cuota
1era cuota
2da cuota
3ra cuota
4ta cuota
5ta cuota
Monto a pagar
USD 10.032,22 (diez mil
treinta y dos dólares
estadounidenses con 22
centavos
de
dólar
estadounidense) o su
equivalente en moneda
bolivianos de acuerdo al
tipo
de
cambio
establecido por el Banco
Central de Bolivia. (BCB)
USD 7.000 (siete mil
00/100 dólares
estadounidenses), o su
equivalente en moneda
bolivianos de acuerdo al
tipo
de
cambio
establecido por el Banco
Central de Bolivia. (BCB)
USD 7.000 (siete mil
00/100 dólares
estadounidenses), o su
equivalente en moneda
bolivianos de acuerdo al
tipo
de
cambio
establecido por el Banco
Central de Bolivia. (BCB)
USD 7.000 (siete mil
00/100 dólares
estadounidenses), o su
equivalente en moneda
bolivianos de acuerdo al
tipo
de
cambio
establecido por el Banco
Central de Bolivia. (BCB)
USD 7.000 (siete mil
00/100 dólares
estadounidenses), o su
equivalente en moneda
bolivianos de acuerdo al
tipo
de
cambio
establecido por el Banco
Central de Bolivia. (BCB)
Fecha de pago
A la firma del presente
documento o hasta
antes del 20/06/2024
Hasta el 20 de julio de
2024.
Hasta el 20 de agosto
de 2024.
Hasta el 20
de
septiembre de 2024.
Hasta el 20 de octubre
de 2024.
pg. 4
REF. FPSD-15845
6ta cuota
USD 7.000 (siete mil
00/100 dólares
estadounidenses), o su
equivalente en moneda
bolivianos de acuerdo al
tipo
de
cambio
establecido por el Banco
Central de Bolivia. (BCB)
Hasta el 20
de
noviembre de 2024.
(…)
Cualquier gasto y comisión que pudieran cobrar los bancos por la realización de
las transferencias serán de cargo exclusivo de ORIENTE PETROLERO, aclarando que
los montos deben llegar a el jugador de forma neta es decir sin ninguna deducción
por ningún concepto.”
Freely translated into English:
"THIRD: FORM OF PAYMENT.
THE PARTIES agree that ORIENTE PETROLERO will pay THE PLAYER the amount due
in 5 equal instalments as described in the following table:
Number of instalments
1st instalment
2nd instalment
3rd instalment
Amount to be paid
USD 10,032.22 (ten
thousand thirty-two US
dollars and 22 US
cents) or its equivalent
in Bolivian currency
according
to
the
exchange
rate
established by the
Central Bank of Bolivia
(BCB).
USD
7,000
(seven
thousand and 00/100
US dollars), or its
equivalent in Bolivian
currency according to
the exchange rate
established by the
Central Bank of Bolivia
(BCB).
USD
7,000
(seven
thousand and 00/100
US dollars), or its
Date of payment
At the signature of this
document or before
20/06/2024
Until 20 July 2024.
Until 20 August 2024.
pg. 5
REF. FPSD-15845
4th instalment
5th instalment
6th instalment
equivalent in Bolivian
currency according to
the exchange rate
established by the
Central Bank of Bolivia
(BCB).
USD
7,000
(seven
thousand and 00/100
US dollars), or its
equivalent in Bolivian
currency according to
the exchange rate
established by the
Central Bank of Bolivia
(BCB).
USD
7,000
(seven
thousand and 00/100
US dollars), or its
equivalent in Bolivian
currency according to
the exchange rate
established by the
Central Bank of Bolivia
(BCB).
USD
7,000
(seven
thousand and 00/100
US dollars), or its
equivalent in Bolivian
currency according to
the exchange rate
established by the
Central Bank of Bolivia
(BCB).
Until 20
2024.
September
Until 20 October 2024.
Until 20
2024.
November
(...)
Any expenses and commissions that could be charged by the banks for making the
transfers will be the exclusive responsibility of ORIENTE PETROLERO, clarifying that
the amounts must reach the player in net form, that is to say without any deduction
for any concept.”
5.
Finally, clause 4 stipulated the consequences in the event of non-payment:
“CUARTA: INCUMPLIMIENTO. Para el caso de incumplimiento por parte de ORIENTE
PETROLERO en el pago de una sola de las cuotas convenidas, en los plazos pactados, se
pg. 6
REF. FPSD-15845
conviene: a. Se producirá automáticamente la caducidad de todos los plazos pactados,
por lo que inmediatamente se harán exigibles todas las sumas debidas, más la penalidad
pactada en el numeral siguiente. b. Una multa o cláusula penal equivalente al 10% (diez
por ciento) de la totalidad de las sumas adeudadas y que se hicieron exigibles una vez
producida automáticamente la caducidad de los plazos, sin perjuicio de poder reclamar
la multa pactada más la totalidad de las sumas debidas. Las partes convienen también
que el monto acordado como cláusula penal o multa no podrá mitigarse por ningún
concepto (ni siquiera por el cumplimiento parcial), en virtud que las partes la consideran
adecuada y no exagerada.”
Freely translated into English:
"FOURTH: NON-COMPLIANCE. In the event of default by ORIENTE PETROLERO in the
payment of any of the agreed instalments, within the agreed terms, it is agreed: a. It will
automatically produce the expiration of all agreed deadlines, so that immediately
become due all sums due, plus the penalty agreed in the following paragraph. b. A fine
or penalty clause equivalent to 10% (ten per cent) of the total sums due and payable once
the expiry of the terms has occurred automatically, without prejudice to the possibility of
claiming the agreed fine plus the total sums due. The parties also agree that the amount
agreed as a penalty clause or fine may not be mitigated by any means (not even by partial
performance), since the parties consider it adequate and not exaggerated.”
II. Proceedings before FIFA
6.
On 30 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
7.
According to the Claimant, the Club failed to pay the first three instalments of the
Agreement, which became due on 20 June, 20 July and 20 August 2024. In this regard, the
Player argued that the acceleration clause stipulated in clause 4 of the Agreement was
triggered on 20 June 2024, along with the penalty clause of 10% on the owed amount.
8.
The requests for relief of the Claimant were the following:
“FIRST - To uphold the entire claim herein filed by the Player;
SECOND - To order the Club to pay the Player USD 45,032.22 (forty-five thousand thirtytwo US dollars and twenty-two cents) plus default interest at the rate of 5% p.a. as of 21
June 2024 until the effective payment;
THIRD - To order the Club to pay the Player U$ 4,503.22 (four thousand five hundred and
three US Dollars and twenty-two cents) due as penalty;
pg. 7
REF. FPSD-15845
FOURTH - To open the proceedings regarding the present dispute and notify the Club
immediately (cf. Art. 21, par. 1 of the FIFA Procedural Rules); and
FIFTH - To confirm that the ongoing proceedings are free of any costs (cf. Ait. 25 of the
FIFA Procedural Rules).”
b. Position of the Respondent
9.
In its reply, the Respondent argued that the Player failed to submit a notice of default to
the claim, in accordance with art. 12bis of the Regulations on the Status and Transfer of
Players.
pg. 8
REF. FPSD-15845
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. First of all, the Single Judge (hereinafter: the 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 30 August 2024 and submitted for decision on 1 October
2024. Taking into account the wording of art. 34 of the March 2023 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.
11. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 Bolivian club.
12. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 30 August 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
13. 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
14. Having established the competence and the applicable regulations, 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 assessing the matter at hand.
pg. 9
REF. FPSD-15845
i. Main legal discussion and considerations
15. The Single Judge then moved to the substance of the matter and took note of the fact that
this is a claim of a player against a club for outstanding remuneration.
16. In this regard, the Single Judge first recalled that the Player argued that the Club failed to
pay the first three instalments of the Agreement and, therefore, the acceleration clause
stipulated in clause 4 of the Agreement was triggered, along with the penalty clause.
17. The Single Judge also noted that the Club only alleged that the Player failed to submit a
notice of default with his claim.
18. In this context, the Single Judge acknowledged that her task was to determine whether the
claimed amounts had in fact remained unpaid by the Respondent and, if so, what the
consequences are.
19. The Single Judge pointed out that, in the case at hand, the Respondent bore the burden of
proving that it indeed complied with the financial terms of the Agreement. Nonetheless,
the Single Judge highlighted that the Club did not dispute the Player’s allegations or provide
any evidence showing that it paid the claimed amounts.
20. Therefore, the Single Judge concluded that the Respondent failed to pay the first three
instalments of the Agreement.
21. For the sake of completeness, the Single Judge wished to underscore that, while it is true
that, based on the evidence on file, the Player did not send any notice of default to the
Club, this does not imply that the Club does not owe a debt to the Player. The only
consequence of the absence of a notice of default is that the outstanding remuneration
cannot be considered as overdue payables in the sense of art. 12bis of the Regulations and,
therefore, the Club cannot be sanctioned based on that article. However, the Single Judge
remarked that the Club shall be condemned to bear the consequences stipulated in the
Agreement, in accordance with the general legal principle of pacta sunt servanda.
22. Based on the above, the Single Judge moved on to analyse the consequences of the Club’s
non-payment. In this respect, the Single Judge noted that clause 4 of the Agreement
contains both an acceleration clause and a penalty clause.
23. The Single Judge observed that, according to the acceleration clause, if the Club failed to
pay one instalment, all other instalments would automatically become due, allowing the
Player to claim the total amount of the Agreement, plus the penalty. In this sense, since the
Club failed to pay the first instalment by 20 June 2024, the Single Judge determined that
the acceleration clause was triggered, and all instalments became due on 21 June 2024.
Therefore, the Single Judge decided to award the Player USD 45,032.22, with 5% interest
p.a. starting from the day after the due date.
pg. 10
REF. FPSD-15845
24. Regarding the penalty clause, the Single Judge pointed out that it is equivalent to 10% of
the total amount that became due after the triggering of the acceleration clause. Since the
Club failed to pay the first instalment, in the Single Judge’s view the penalty clause shall be
calculated as 10% of the total amount of the Agreement, which the Single Judge considered
to be proportional, in line with the jurisprudence of the Football Tribunal. Thus, the Single
Judge decided to award the Player USD 4,503.22 as contractual penalty.
ii. Compliance with monetary decisions
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
d. Costs
30. 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.
pg. 11
REF. FPSD-15845
31. 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.
32. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 12
REF. FPSD-15845
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jonatan Cristaldo, is partially accepted.
2.
The Respondent, CD Oriente Petrolero, must pay to the Claimant the following amounts:
- USD 45,032.22 as outstanding remuneration plus 5% interest p.a. as from 22 June 2024
until the date of effective payment;
- USD 4,503.22 as contractual penalty.
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
pg. 13
REF. FPSD-15845
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 Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14