Labour Disputes
Texto da decisão
REF FPSD-6215
Decision of the
Dispute Resolution Chamber
passed on 6 September 2022
regarding an employment-related dispute concerning the player Lois Pablo
Diony
COMPOSITION:
Omar ONGARO (Italy), Deputy Chairperson
Stijn BOEYKENS (Belgium), member
Daan DE JONG (The Netherlands), member
CLAIMANT:
Loïs Pablo Diony, France
Represented by Ismael Lambin
RESPONDENT:
FK Crvena Zvezda, Serbia
Represented by Davor Radić
Page 2
REF FPSD-6215
I. Facts of the case
1.
On 5 July 2021, the French player, Loïs Pablo Diony (hereinafter: the player or the
Claimant) and the Serbian club, FK Crvena Zvezda (hereinafter: the club or the
Respondent) concluded an employment agreement valid as from 3 July 2021 to 30 June
2022 (hereinafter: the contract).
2.
Under the contract, the player was entitled to a monthly salary of EUR 52,000 net, as well
as the following bonuses:
a.
b.
c.
d.
e.
“Entering the group stage of UEFA Champions League: EUR 100,000 net”;
“Entering the group stage of UEFA Europa League: EUR 50,000 net”;
“For winning the Serbian national title: EUR 50,000 net”;
“For winning Serbian Cup: EUR 20,000 net”;
“Bonus per each goal and/or assist on an official match: EUR 2,000 net”.
3.
Clause 6 of the contract states that “the fixed monthly earnings shall be paid by no later than
the 25th day of the month for the prior month”.
4.
Clause 4 of the contract reads inter alia as follows: “The disputes related to this Contract shall
exclusively be referred by other party to [FIFA] with English as the language of the procedure”.
5.
On 10 March 2022, the parties signed a settlement agreement (hereinafter: the
settlement agreement), according to which the Respondent acknowledged to owe EUR
311,380 to the Claimant, as follows:
a. Salaries between October 2021 and February 2022: EUR 260,000 net, which
would be paid in two instalments, being EUR 26,000 on 11 March 2022 and
EUR 234,000 by 30 April 2022;
b. “Awards for UEFA Europa League”: EUR 39,380 net, payable by 15 July 2022;
c. Performance bonuses of EUR 12,000, payable by 15 July 2022.
6.
Under the settlement agreement, the parties further agreed on the following:
a. The salary of March 2022 for EUR 52,000 net would be paid by 30 April 2022;
b. All other amounts the player was entitled to would be paid at their maturity
dates under the contract;
c. All amounts under the settlement agreement would be paid in Serbian Dinar
(RSD) at the “middle exchange rate of the National Bank of Serbia” at the day of
payment.
7.
Clause 3 par. 2 of the settlement agreement states that if the club failed to pay the player
the concepts amounting to EUR 286,000 by 30 April 2022, a penalty of 5% on the overdue
amount would be due.
Page 3
REF FPSD-6215
8.
Clause 4 of the settlement agreement reads as follows: “In the event of a dispute, the parties
shall attempt to resolve it by mutual agreement, otherwise the Dispute Resolution Chamber of
FA of Serbia or FIFA shall be competent”.
9.
On 11 May 2022, the player put the club in default of payment of EUR 352,300, granting
it with 15 days to cure the breach. The breakdown of the amounts requested by the player
in his notice is not clear since he refers both to the contract and settlement agreement,
as well as the penalty agreed therein.
10. On 26 May 2022, the player put the club in default of payment of EUR 520,380 net, broken
down as follows. No deadline to cure such breach was given by the player. The
computation of the amounts owed appears mathematically incorrect.
a. EUR 234,000 as the second instalment of the settlement agreement due on
30 April 2022;
b. EUR 52,000 as the salary of March 2022, due on 30 April 2022;
c. EUR 14,300 as 5% penalty on EUR 286,000 in accordance with the settlement
agreement;
d. EUR 156,000 as the salaries of April and May 2022;
e. EUR 12,000 as performance bonus (Serbian Title);
f. EUR 52,000 as the salary of June 2022.
II. Proceedings before FIFA
11. On 31 May 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
12. The player lodged a claim before FIFA for outstanding remuneration only. After being
requested to provide a detailed breakdown of the amounts sough, he detailed that he
claimed the total amount of EUR 520,180 net, and provided the explanation detailed in
continuation. The submissions of the player are reproduced below for the sake of
completeness since the breakdown provided was found to be unclear by the Dispute
Resolution Chamber. No interest was requested by the Claimant.
“A. M. Lois Pablo Diony has signed a contract of a total amount of 52 000€ NET per month
starting from July 3rd 2021 to 30th June 2022. He should have been paid a total amount of 624
000€ NET without bonus. Since he started playing with FK CRVENA ZVEZDA he only received the
following payments:
52 000€ on August 2nd, 2021. This is for his monthly salary of July 2021
He was not paid for his August 2021 salary
Page 4
REF FPSD-6215
26 000€ on October 13th, 2021. This is half of his September 2021 salary
26 000€ on November 30th, 2021. This is half of his October 2021 salary
He was not paid on November 2021 / December 2021 / January 2022
52 000 € on February 2nd 2022 . This is for his monthly salary of January 2022.
26 000 € on March 11th, 2022. This is the first Paiement of the agreement we make on
10th March 2022.
Since he did not received anything from FK CRVENA ZVEZDA.
The total amount of the payment of salaries he received as of now is
182 000 € NET.
For his salaries FK CRVENA ZVEZDA owes him 442 000 € NET.
-
B. M. Lois Pablo Diony’s contract also includes performance bonus payments, theses bonus are
calculated according to his appearances in competition.
These performance bonuses breakdown is as follows :
➢
His contract mentions : « Entering the group stage of UEFA europa league: 50 000 €
NET » Europa League bonus. The calculation of this bonus is based on the pro rata of his
appearances in competition. Hence as mentioned in our settlement agreement signed on
March 10th, 2022 FK CRVENA ZVEZDA must pay him 39 380€ NET by July 15th, 2022.
➢
His contract also includes bonus per each goal and/or assist on official match : 2000 €
NET. According to our
settlement agreement signed on March 10th, 2022 FK CRVENA ZVEZDA must pay him 12 000€
NET.
➢
His contract mentions: « For winning Serbian national title : 50 000€ NET » The
calculation of this bonus is based on the pro rata of his appearances in competition. FK CRVENA
ZVEZDA must pay him 12 500€ NET.
C. As mentioned in Article 3 of our settlement agreement signed « the parties agree that if the
club fails to pay the obligations stipulated in Article 2, paragraph 1, point 2 and Article 2,
paragraph 2 of this agreement, in total net amount of 286 000€ by 30th April 2022, the club
undertakes to pay one-off penalty of 5% applied on the overdue amount of the subject debt ».
Hence FK CRVENA ZVEZDA must pay him 14 300€ in accordance.”
b. Position of the Respondent
13. The Respondent filed its response and objected both as to the admissibility and as to the
substance of the claim.
14. As to the admissibility, the club referred to clause 4 of the settlement agreement and
argued that the clause included therein is not clear and exclusive in favour of FIFA. As
such, the club deems that the matter shall be resolved by the National Dispute Resolution
Chamber of Serbia (hereinafter: the NDRC of Serbia) and argued that the cited cluse
Page 5
REF FPSD-6215
must be interpreted to reflect the parties’ true intention to refer disputes to said body.
No evidence in support of this allegation was however provided by the Respondent.
15. As to the substance, the club argued the parties “did not take into account the circumstances
surrounding the coronavirus (Covid-19) in the time when they signed this Settlement
Agreement”. As such, it referred to the FIFA Covid Guidelines & FAQ, and submitted that
“accordance with the aforementioned art. 12 par. 3 of the Procedural Rules insofar as the FIFA
COVID FAQ, in its question no. 1, establishes that the Bureau of the FIFA Council did not
determine that the COVID-19 outbreak was a force majeure situation in any specific country or
territory, or that any specific employment or transfer agreement was impacted by the concept
of force majeure; rather, it provides that whether or not a force majeure situation (or its
equivalent) exists in the country or territory is a matter of law and fact, which must be
addressed on a case-by-case basis vis-à-vis the relevant laws that are applicable to any specific
employment or transfer agreement”.
16. In continuation, the club argued that the player was disciplined because of “offenses” on
21, 25, and 28 November 2021 for being in “alcoholic condition”. However, no evidence in
support of this allegation was provided by the Respondent.
17. Lastly, the club referred to the penalty and interest established under clause 3 of the
settlement agreement and argued that these are disproportionate and should be set
aside in full.
18. The Respondent asked the following relief:
“As a result of that the Claimant’s claim is not admissible and competent court for solve this
dispute between the Parties will be the Dispute Resolution Chamber of the FA of Serbia and
because of that FIFA must dismiss the claim of the Claimant. In the alternative, the Respondent
Club FK Crvena Zvezda consider that the Claimant’s claim is competent than the Respondent
Club FK Crvena Zvezda proposed that the FIFA Dispute Resolution Chamber accept only one
part of the Claimant’s request in the amount of EUR 350,000 and dismiss in full another request
of the Claimant.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 31 May 2022 and submitted
for decision on 6 September 2022. Taking into account the wording of art. 34 of the June
2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
Page 6
REF FPSD-6215
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
20. 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 par.
1 lit. b) of the Regulations on the Status and Transfer of Players (RSTP) (July 2022 edition),
the Dispute Resolution Chamber is in principle competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a French player and a Serbian club.
21. The Chamber however noted that the Respondent challenged the competence of FIFA in
favour of the NDRC of Serbia with reference to clause 4 of the settlement agreement.
22. In this respect, the DRC referred to the Commentary to the Regulations on the Status and
Transfer of Players – 2021 Edition (p. 359):
“FIFA is a private association in accordance with the Swiss Civil Code. As such and based on the
very liberal and flexible legal framework applicable to private associations in Switzerland, it is
free to set its own objectives, scope of operations and competences, among other things.
Hence, if it decides to introduce and implement a private dispute resolution system, it can set
the limits of that system’s competence by defining the types of disputes that should, and should
not, fall within the scope of that system.
First and foremost, FIFA competence is focused on disputes with an international dimension.
Moreover, as well as defining the parties that have standing to appear in front of the decisionmaking bodies, article 22 also provides an exhaustive enumeration of the types of disputes
FIFA is competent to hear. It is important to emphasise that the scope of FIFA jurisdiction is not
open to the parties’ discretion; it derives from the FIFA Statutes and the Regulations, and not
from private agreements between parties. For example, it is not possible for a club to conclude
a contract for the supply of footballs with a private company, and then to nominate FIFA as
the competent forum to rule on any disputes that may arise from such a contract, as disputes
of this kind would not fall within those enumerated within article 22.”
23. What follows from the above is that a jurisdiction clause in a contract giving competence
to a particular deciding body (or the Football Tribunal) is not per se binding on the Football
Tribunal, for its competence derives not from the contractual arrangements between any
given parties but in fact from the RSTP and the FIFA Statutes.
24. Taking into account all the above, the Chamber emphasised that in accordance with 22
par. 1 lit. b) of the RSTP, FIFA is, in principle, competent to hear an employment-related
dispute between a club and a player of an international dimension. Nevertheless, the
parties may explicitly opt in writing for such dispute to be decided by an independent
arbitration tribunal that has been established at national level within the framework of
Page 7
REF FPSD-6215
the association and/or a collective bargaining agreement. Any such arbitration clause
must be included either directly in the contract or in a collective bargaining agreement
applicable on the parties. The independent national arbitration tribunal must guarantee
fair proceedings and respect the principle of equal representation of players and clubs.
Equally, the Chamber referred refer to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
25. In this context, the DRC proceeded to analyse whether the employment contract at the
basis of the present dispute contained a clear and exclusive jurisdiction clause in favour
of the NDRC of Serbia. In doing so, it found that clause 4 of the settlement agreement
does not clearly and exclusively establish the competence of the NDRC of Serbia – as it
even mentions FIFA. Additionally, the DRC underlined that the contract has a jurisdiction
clause in favour of FIFA on an exclusive basis.
26. Consequently, the DRC dismissed the allegations of the Respondent and confirmed it is
competent to hear the dispute as to its substance.
27. 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 RSTP (July 2022 edition), and considering that the present claim was lodged
on 31 May 2022, the March 2022 edition of said regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
b. Burden of proof
28. 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
29. 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.
Page 8
REF FPSD-6215
i. Main legal discussion and considerations
30. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the payment of certain
financial obligations by the Respondent as per the contract and the settlement
agreement.
31. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
32. The Chamber first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contracts concluded
between the parties. In this respect, the Respondent argued that the parties failed to
consider the circumstances regarding the COVID-19 pandemic. However, the Chamber
strongly remarked that such settlement agreement was executed in 2022 when the
effects of the pandemic were well known. As such, the Chamber firmly decided that the
reasons invoked by to Respondent not to comply with its contractual obligations must be
set aside.
33. The DRC furthermore noted that the Respondent challenged the validity of the penalty
clause included in the settlement agreement. This argumentation, in the Chamber’s view,
must also be set aside because the amounts included therein are fair and proportionate,
and even quite low in accordance with the jurisprudence of the DRC.
34. As such, the Chamber concluded that no reasonable justification was presented by the
Respondent for not having complied with its financial duties. Bearing in mind the basic
legal principle of pacta sunt servanda, which in essence means that agreements must
be respected by the parties in good faith, the DRC decided that the Respondent should
be liable to pay the Claimant the outstanding amounts deriving from the contract and the
settlement agreement, namely:
a.
b.
c.
d.
e.
f.
Second instalment of the settlement agreement: EUR 234,000;
Salaries between March and June 2022: EUR 52,000 each, amounting to EUR 208,000;
Penalty of 5%: EUR 14,300;
Europa League award: EUR 39,380;
National title award: EUR 12,500;
Performance bonus: EUR 12,000.
35. The Chamber noted that these amounts alone already exceed the petitum of the Claimant
for EUR 520,180. Accordingly, in line with the principle non ultra petita, the Chamber
considered that it was limited to the amounts sought by the Claimant, who was
Page 9
REF FPSD-6215
consequently awarded EUR 520,180 as requested. The same rationale was applied by the
DRC to the interest: because the Claimant has not requested any interest on the amounts
claimed, no interests could be granted.
ii. Compliance with monetary decisions
36. 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.
37. 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.
38. 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.
39. 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.
40. 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.
d. Costs
41. 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.
42. 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.
Page 10
REF FPSD-6215
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Lois Pablo Diony, is admissible and accepted.
2.
The Respondent, FK Crvena Zvezda, has to pay to the Claimant EUR 520,180 as
outstanding remuneration.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 11
REF FPSD-6215
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
Page 12