Labour Disputes
Texto da decisão
REF FPSD-688
Decision of the
Dispute Resolution Chamber
passed on 12 August 2021
regarding an employment-related dispute concerning the player Saba Dia
COMPOSITION:
Geoff Thompson (England), Chairman
MD Abu Nayeem Shohag (Bangladesh), member
Tomislav Kasalo (Croatia), member
CLAIMANT / COUNTER-RESPONDENT:
Saba Dia, Israel
Represented by Yuval Shadmi
RESPONDENT / COUNTER-CLAIMANT:
Guangzhou RF FC, China PR
Represented by Salvatore Civale
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REF FPSD-688
I.
FACTS OF THE CASE
1.
On 1 February 2019 the Israelian player, Saba Dia (hereinafter: Player), and the Chinese
club, Guangzhou RF FC (hereinafter: Club) signed an employment contract valid as from
the same date until 31 December 2021 (hereinafter: the contract).
2.
In accordance with clause 2 of the contract, the Club agreed that: “Party A (the Club) shall
be responsible for any and all matters related to personal income taxes of Party B (the Player)
in the People’s Re-public of China, as well as that Party A shall withhold and remit all the
relevant taxes of Party B subject to the applicable tax rate.”
3.
On 27 September 2020, the parties agreed on the early termination of the contract(the
“settlement agreement”), after receiving an official offer from the Emirati club, Al-Nasr SC
(hereinafter: Al Nasr).
4.
Pursuant to article 3 and 4 of the settlement agreement, the Club undertook to pay to the
Player the following amounts, at latest, on 4 October 2020:
EUR 150,000 as outstanding bonus;
EUR 333,334 as outstanding salaries for the months of August 2020 and
September 2020.
5. Furthermore, the parties stipulated that the Player should have transferred to the Club the
financial subsidies related to the fiscal years 2019 and 2020 once they would have been
received from the Chinese government in accordance with the subsidies policy issued by the
local municipal government. The wording of the settlement agreement referring to the
aforementioned fiscal matter was the following:
“Art.5
According to Article 2 of the Employment Contract, the Parties agreed that Party A
(the Club) shall be responsible for any and all matters related to personal income taxes
of Party B (the Player) in the People’s Republic of China, as well as that Party A
shall withhold and remit all the relevant taxes of Party B subject to the applicable
tax rate;
Art. 6
In 2019, relevant departments of the Guangzhou municipal government and national
tax authorities issued the financial subsidies policy according to which (together
with its amendments and other related regulations, "Subsidies Policy"), some
government subsidies ("Subsidies") will be granted and deducted from part of the
taxes withheld and remitted by Party A for Party B in the fiscal years 2019 and 2020.
However, according to the tax settlement procedures and due to personal
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information protection issues, the Subsidies shall be transferred to Party B's
personal bank account directly under the Subsidies Policy;
Party B hereby agrees and confirms that the Subsidies shall be transferred to a
domestic bank account under his own name (see infra) and that, subsequently, such
amount shall be transferred to Party A as follows:
•
Upon Party B receives the Subsidies for the fiscal year 2019 ("2019 Subsidies"),
for the amount estimated of 886,323.82 EUR, Party B will immediately
transfer the entire amount of 886,323.82 EUR to the bank account designated
by Party A within 5 working days after receipt of such Subsidies;
•
Upon Party B receives the Subsidies for the fiscal year 2020 ("2020 Subsidies"),
for the amount estimated of 752,284.83 EUR, Party B will immediately
transfer the entire amount of 752,284.83 EUR to the bank account designated
by Party A within 5 working days after receipt of such Subsidies.
In case the amount received by Party B for the fiscal years 2019 and 2020 will be
higher than the figures above indicated, Party B will transfer the exact amount he will
receive to Party A.
“If Party B fails to transfer the Subsidies to Party A within the prescribed deadline,
Party A shall put Party B in default by means of written notification and a deadline of
10 days for compliance. After expiration of such deadline, Party A has the right to
claim the relevant amount from Party B, which shall be paid in full to Party A plus a
penalty equals to 330,000 EUR for the breach of the Agreement which is considered
fair and proportionate from both Parties.”
6.
On 10 October 2020, the Club filed on behalf of the Player the application for the
assignment of the financial subsidies connected with the fiscal year 2019.
7.
On 30 October 2020, the Club transferred to the Player the amount of EUR 248,767,
namely corresponding to 51% of the total sum due to the latter under the settlement
agreement.
8.
On 1 November 2020, the Player put in default the Club of payment of EUR 234,335 and
requested the immediate payment, contextually accusing the latter for having breached the
settlement agreement.
9.
On 3 December 2020, the Player received from the Chinese Tax Authority the financial
subsidy for the fiscal year 2019, directly to his bank account and for the total amount of
CNY 7,054,791.80, which equals approximately EUR 906,210.74.
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10.
On 15 December 2020, via the social media platform WeChat, the Player’s agent confirmed
to the Club the receipt of the aforementioned sum from the Chinese Tax Authority.
11.
On 5 January 2021, the Club acknowledged by email sent to the Player to be in debt
towards the latter for an outstanding amount of EUR 150,000 and contextually proposed
the Player to offset said amount against the financial subsidies received from the Chinese
Tax Authority on 3 December 2020, which amounted to CNY 7,054,791.80 (approximately
EUR 926,500). In particular, the Club proposed the Player to withhold the amount of CNY
1,202,947.50 corresponding to the outstanding bonus of EUR 150,000 and to transfer to
the Club the residual sum of CNY 5,851,814.34 as per Article 5 and 6 of the settlement
agreement.
12.
On 26 January 2021, the Player informed the Club that the settlement agreement dated 27
September 2020 shall be deemed null and void as it had clearly been breached by the latter.
13.
On 5 February 2021, the Club put the Player in default of payment of CNY 5,851,814.34
as outstanding fiscal subsidy in accordance with the settlement agreement, and contextually
granted a term of 10 days in order to remedy the default.
II.
PROCEEDINGS BEFORE FIFA
14.
On 27 January 2021, the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Player
15.
According to the Player, the Club has partially failed to perform the financial obligation
embodied in the settlement agreement - namely the payment of the remaining EUR
234,567 out of EUR 483,334 – hence the Player was entitled to seek the termiantion of the
settlement agreement.
16.
In this context, the Player’s opinion is that the Club misbehaviour led to the invalidity of the
settlement agreement, hence only the obligations set under the original employment
agreement shall be enforceable, namely the remuneration due to the Player by the Club.
17.
Accordingly, in the Player’s view, whereas the aforementioned remuneration is outstanding
as per the employment agreement, the Club’s entitlement to the financial subsidies granted
by the Chinese Tax Authority would result excluded since the latter breached the settlement
agreement. Hence, the Player submitted deems he is entitled to such amounts alone.
18.
In conclusion, the Player requested to be awarded the amount of EUR 234,567 as
outstanding remuneration.
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b.
Position of the Club
19.
In its reply, the Club lodged a counterclaim against the Player.
20.
In fact, according to the Club, the Player has breached the settlement agreement as well,
namely by not complying with the deadline thereto stipulated.
21.
In particular, the Club stated that, according to the abovementioned agreement, the Player
should have remitted to the Club the financial subsidies received from the Chinese Tax
Authorities within 5 days from the date of receipt (i.e. 8 December 2021), but the Player
failed to do so.
22.
Furthermore, the Club alleged that the amount of EUR 248,767 paid to the Player on 30
October 2020 was net of specific costs not indicated in the settlement agreement but
nonetheless covered by the Club, namely the amount of EUR 84,566.06 paid by the same
club as expenses and fees for a charter flight booked by the Player.
23.
In this context, the Club pointed out that it decided to suspend payment to the Player until
receipt of the first subsidy’s refund by the Player. The Club explained that it did so as it was
worried that the Player could not fulfil his obligations under the settlement agreement. The
Club further pointed out that the Player owed to the Club as refund of the financial
subsidies an estimated sum of EUR 1,638,606.65, which was almost 10 times higher than
the amount still due by the Club to the Player (i.e. EUR 150,000).
24.
In the Club’s view, the Player has acted in bad faith, namely due to the fact that at the
moment of lodging the present claim, he had already received from the Chinese Tax
Authority the fiscal subsidy of EUR 906,210.74. The Club submits that a part of this should
have been remitted as per the settlement agreement.
25.
In this respect, the Club pointed out that the Player has purposely ignored the Club’s
proposal for setting off the outstanding monies, and conversely simply notified the breach
of the settlement agreement without having de facto suffered any financial loss, but, on
the contrary, obtaining a condition of undue enrichment.
26.
Therefore, the Club argued that the Player shall be deemed as the sole party currently in
debt, and that due to the latter’s failure to comply with the deadline stipulated in the
settlement agreement, the Player shall be also held responsible for the payment of the
penalty fee agreed by the parties in the same agreement amounting to EUR 330,000.
27.
In this respect, the Club highlighted that the Player received the fiscal subsidy for the year
2019 on 3 December 2020 and did not remit it to the Club within the term of 5 days (i.e.
8 December 2020), nor at a later stage despite of the several proposals addressed to the
Player in order to offset the outstanding amounts between the parties.
28.
In view of the above considerations, the Club ‘s requests for relief were the following:
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A. The Player must pay to the Club the amount of CNY 7,054,791.80 as refund of the
financial subsidy for the fiscal year 2019, or
B. The Player must pay to the Club the amount of CNY 5,851,814.34 as refund of the
financial subsidy for the fiscal year 2019 after deduction of the amount due by the
Club to the Player;
C. The Player must pay to the Club the amount of EUR 330,000 as penalty fee for
breach of the settlement agreement;
D. The Player shall pay a 5% interest per year on any amount due in favour of the Club,
starting from:
c.
•
8 December 2020 as for any of the amounts indicated at point A) or B);
•
15 January 2021 (or 15 February 2021) as for the amount indicated at point
C).
Position of the Player to the counterclaim
29.
In its reply to the counterclaim lodged by the Club, the Player reiterated his previous
requests, alleging that even recognizing the settlement agreement as still valid, this would
not allow the Club to deduct or offset any amount against the Player’s financial
entitlements.
30.
Therefore, according to the Player, the Club should have paid the entire outstanding
amount within the deadline fixed in the settlement agreement in order to really prove its
alleged good faith, arguing that neither the fiscal subsidy nor the flight ticket expenses were
taken into consideration by abovementioned agreement, hence these are not due by the
Player.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
31.
Competence and applicable legal framework
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 27 January 2021 and submitted
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for decision on 12 August 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
32.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition August 2021), 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 Israelian player
and a Chinese club. The Chamber also noted that its competence was not challenged by
the parties.
33.
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 Player (edition February 2021), and
considering that the present claim was lodged on 27 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
34.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
35.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
36.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
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37.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Player strongly disputed the validity of the settlement
agreement dated 27 September 2021 as allegedly breached by the Club. In this context,
the Chamber acknowledged that it its task was firstly to establish whether the
aforementioned contract shall be deemed as still valid and binding between the parties.
38.
In this respect, the DRC remarked that, as a general rule, the non-compliance by one or
more parties with the obligations set under a contract does not render such agreement null
and void.
39.
Accordingly, in casu, the Chamber was of the opinion that the simple delay by the Club in
the payment of the sums stipulated under the settlement agreement could not entail the
nullity nor invalidity of said contract, which therefore remains in force and binding for the
parties. The Chamber also highlighted that no disposition under the settlement agreement
established that a default would result in said contract being deemed null and void.
40.
With the above in mind, the DRC established that, in accordance with article 5 of the
settlement agreement, the Player shall refund the Club the financial subsidy granted by the
Chinese Tax Authority on 3 December 2020. Nevertheless, the DRC recalled the well-known
principle according to which a party in breach of its obligations shall not request the
execution of the counter-party’s performance (exceptio non adimpleti contractus).
41.
In this respect, the Chamber observed that the Club was the first party in breach of the
settlement agreement dated 27 September 2021, as the latter (partially) failed to pay the
amount of EUR 483,334 within the given term of 4 October 2020.
42.
Moreover, the Chamber recalled that the Club requested the deduction of EUR 84,566 from
the outstanding remuneration due to the Player (i.e. EUR 234,566) as said amount was
allegedly paid by the Club in order to cover the Player’s charter-flight on 16 July 2020.
43.
In this respect, the DRC noted that, although the Player did not contest the fact that the
Club had covered the Player’s flight expenses and related fees in the amount of EUR 84,566,
nevertheless such payment occurred prior to the conclusion of the settlement agreement.
Therefore, the Chamber assumed that at the moment of concluding said agreement the
Parties had excluded the above-mentioned amount from the total balance, hence it
corresponds to EUR 234,566.
44.
Therefore, in the Chamber’s view, the Club shall not be entitled to demand the payment
from the Player of the amounts due under the settlement agreement without contextually
offering to perform the relevant counter-obligation towards the latter, namely in the total
amount of EUR 234,566.
45.
Similarly, the DRC established that the penalty fee agreed by the parties in case of noncompliance by the Player with the deadline stipulated in the settlement agreement for the
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refund of the financial subsidies granted by the Chinese Tax Authority shall not be
applicable as the Club firstly breached the aforementioned contract.
46.
In this context, the DRC observed that while, as a general rule, the imposition of a fine or
any other available financial sanction, shall not be used by clubs as a means to offset
outstanding financial obligations towards players, conversely, the existence of sums verified
and lawfully owed by a club towards their players may justify, in principle, the possibility of
counterbalancing the monies outstanding between the parties by awarding both of them
a specific sum in the same proceeding.
47.
With the above in mind as well as based on the principle pacta sunt servanda, the Chamber
concluded that the Club remains liable towards the Player for outstanding remuneration in
the total amount of EUR 234,566, whereas the latter shall pay to the Club the sum of CNY
7,054,791.80 as refund of the financial subsidy granted by the Chinese Tax Authority on 3
December 2020.
48.
Lastly, in line with the well-established jurisprudence of FIFA DRC, the Chamber decided to
apply 5% interest per annum to each amount awarded as of the respective due dates.
ii. Compliance with monetary decisions
49.
Finally, the Chamber referred to par. 1 lit. and 2 of art. 24bis 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.
50.
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.
51.
Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, 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 Club in
accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
52.
The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
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53.
Similarly, the DRC recalled that, against players, the consequence of the failure to pay the
relevant amounts in due time shall consist of a ban from 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 on playing in official matches.
54.
Therefore, bearing in mind the above, the DRC 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 Club, a ban from playing in any official
match, for the maximum duration of six months shall become immediately effective on the
Player in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
55.
The Player shall make full payment (including all applicable interest) to the bank account
provided by the Club in the Bank Account Registration Form, which is attached to the
present decision.
56.
Lastly, the DRC recalled that the above-mentioned bans will be lifted immediately and prior
to their complete serving upon payment of the due amounts, in accordance with art. 24bis
par. 8 of the Regulations.
d.
Costs
57.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
58.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
59.
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/Counter-Respondent, Saba Dia, is accepted.
2.
The Respondent/Counter-Claimant, Guangzhou RF FC, has to pay to the Claimant/CounterRespondent, the following amount:
EUR 234,566 as outstanding remuneration plus 5% interest p.a. as from 5 October
2020 until the date of effective payment.
3.
The counterclaim of the Respondent/Counter-Claimant, Guangzhou RF FC, is partially accepted.
4.
The Claimant/Counter-Respondent has to pay to the Respondent/Counter-Claimant, the
following amount:
CNY 7,054,791.80 as outstanding sum plus 5% p.a. interest as of 9 December 2020
until the date of effective payment.
5.
Full payment (including all applicable interest) shall be made to Claimant/Counter-Respondent’s
bank account set out in the enclosed Bank Account Registration Form.
6.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid within 45 days of notification of this decision, the
following consequences shall apply:
1. The Respondent/Counter-Claimant shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum duration 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 paid by the end of
the of the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant/CounterRespondent in accordance with article 24bis paragraphs 7 and 8 and article 24ter of the
Regulations on the Status and Transfer of Players.
8.
Full payment (including all applicable interest) shall be made to the Respondent/CounterClaimant’s bank account indicated in the enclosed Bank Account Registration Form.
9.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid within 45 days of notification of this decision, the
following consequences shall apply:
1. The Claimant/Counter-Respondent shall be restricted from 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 on playing in official matches.
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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 paid by the end of
the six months restriction on playing in official matches.
10.
The consequences shall only be enforced at the request of the Respondent/Counter-Claimant
in accordance with article 24 bis paragraphs 7 and 8 and article 24ter of the Regulations on the
Status and Transfer of Players.
11.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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