Labour Disputes
Texto da decisão
REF FPSD-8461
Decision of the
Dispute Resolution Chamber
passed on 15 February 2023
regarding an employment-related dispute concerning
the player Gustavo Alfonso Dulanto Sanguinetti
BY:
Angela COLLINS (Australia)
CLAIMANT:
Gustavo Alfonso Dulanto Sanguinetti, Peru
RESPONDENT:
Boavista FC, Portugal
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I. Facts of the case
1. The player and Boavista FC concluded an employment contract valid as from 8 July 2019 until 30
June 2021, for a yearly salary of EUR 70,000.
2. On 2 December 2020, the parties concluded a termination agreement ac cording to which the club
committed to pay to the player the following amounts:
EUR 10,000 net at the date of signature,
EUR 5,000 until 5 January 2021
3. In addition, clause 5 of the termination agreement stipulated a penalty of EUR 10,000, should the
club not pay the first instalment.
4. On 5 September 2022, the player sent a default notice, requesting the payment of the second
instalment (EUR 5,00), as well as a penalty of EUR 10,000, and granted 10 days to remedy the default.
5. On 5 October 2022, the player sent the following message to the club:
“Not having responded or paid the sum of UROS 15,000 in accordance with the agreement dated
December 2,
2020, according to art. 12 bis.3 of RETJ of FIFA, I give effect to the reprimand ordered and communicated
the beginning of the process befare CDR OF FIFA.”
II. Proceedings before FIFA
1. On 2 December 2022, the player lodged a claim before FIFA for outstanding remuneration and
requested the payment of EUR 15,000 plus interest, corresponding to the penalty (EUR 10,000) and
the second instalment.
2. In its reply, the Respondent considered that the claim is inadmissible since it was addressed to the
Players’ Status Committee and not to the Dispute Resolution Chamber.
3. The Respondent considered that the claim is time-barred since the termination agreement was
dated 2 December 2020 and the claim was, allegedly, lodged on 6 December 2022.
4. The Respondent confirmed that it paid EUR 10,000 on 2 December 2020.
5. As a result, the Respondent considered that the penalty clause stipulated in art. 5 of the termination
agreement cannot be applied.
6. The Respondent further referred to its “extraordinary financial difficulties and liquidity problems” in
view of the COVID-19 pandemic.
7. In particular, the Respondent underlined that it is of public knowledge that it went through a “Special
Revitalization Process”.
8. The club considered that all its obligations arising during the COVID-19 pandemic “should be
extinguished”.
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9. In his replica, the Claimant rejected the Respondent’s arguments and insisted in his initial request.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as the
Judge or Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, it took note that the present matter was presented to FIFA on 2 December 2022 and
submitted for decision on 15 February 2023. Taking into account the wording of art. 34 of the
October 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 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 lit. b) of the Regulations on the Status
and Transfer of Players (October 2022 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 a Peruvian player and a Portuguese club.
3.
Subsequently, the Single Judge 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 (October 2022 edition), and considering
that the present claim was lodged on 02 December 2022, the October 2022 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Admissibility
4.
The Single Judge noted that the Respondent considered that the claim of the Claimant to be
inadmissible insofar it was addressed to the Players’ Status Committee and not to the Dispute
Resolution Chamber.
5.
In this respect, the Single Judge noted, however, that the distribution of matters between the
Players’ Status Chamber and the Dispute Resolution Chamber, both of which are part of the same
FIFA Football Tribunal, is done ex officio by the FIFA Administration. Therefore, the formal mistake
of the player in his claim by addressing to the wrong chamber cannot prevent him from exercising
his procedural rights before the Dispute Resolution Chamber, which is part of the Football
Tribunal.
6.
At this point, the Single Judge referred to art. 23 par. 3 of the Regulations, which stipulates that the
decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since
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the facts leading to the dispute arose. The application of this time limit shall be examined ex officio in
each individual case.
7.
In this context, the Single Judge recalled that the present claim was lodged in front of FIFA on 02
December 2022, and the claimant is requested the payment of an amount due on 5 January 2021, i.e.
within the two years limit. Therefore, the Single Judge confirmed that the claim is fully admissible.
c.
8.
Burden of proof
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 it may consider evidence not filed by the
parties, including without limitation the evidence generated by or within the Transfer Matching
System (TMS).
d. Merits of the dispute
9.
Its 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 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
10. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note that, following an initial employment contract valid as from 8 July 2019 until 30 June
2021, the parties concluded a mutual termination agreement, according to which the club
committed to pay to the player the following amounts:
EUR 10,000 net at the date of signature,
EUR 5,000 until 5 January 2021
11. Subsequently, the Single Judge observed that the Claim lodged a claim before FIFA, by means of
which he requested, inter alia, the payment of the amount due on 5 January 2021.
12. In relation to said amount, the Single Judge noted that the Respondent acknowledged its debt for
the amount due on 5 January 2022, but that it also argued that it paid the amount of EUR 10,000
on 2 December 2020.
13. In addition, the Single Judge also acknowledge the Respondent’s reference to the context of COVID19. However, after duly examining the evidence submitted during the course of the investigation
the Single Judge concluded that no situation of force majeure could be established and that the
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COVID-19 outbreak shall not be used as an excuse not to comply with contractually agreed
payments, particularly considering that the agreement that is at the basis of the present was
signed in December 2020, when the effects of the pandemic were already known.
14. Given that this part of the claim remains undisputed, in accordance with the principle of pacta sunt
servanda, the Single Judge established that the Respondent shall pay the amount of EUR 5,000,
which was due on 5 January 2021.
15. In addition, taking into consideration the Claimant’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on
the due amount as from the day it became outstanding until the date of effective payment.
16. The Single Judge then examined the player’s request to receive EUR 10,000, corresponding to the
penalty stipulated in clause 5 of the termination agreement.
17. After duly examining the contents of said clause, the Single Judge noted that it stipulated a penalty
payable only if the club failed to pay the first instalment of the mutual termination agreement, but
it did not refer to any subsequent instalment. Hence, the Single Judge concluded that said clause
is inapplicable to the matter at stake. As a result, the Single Judge rejected this part of the player’s
claim.
ii. Compliance with monetary decisions
18. 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.
19. 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.
20. 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.
21. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form.
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22. 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.
e. Costs
23. 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.
24. 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.
25. Lastly, the Single Judge concluded her 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, Gustavo Alfonso Dulanto Sanguinetti, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Boavista FC, has to pay to the Claimant, the following amount:
- EUR 5,000 as outstanding remuneration plus 5% interest p.a. as from 6 January 2021 until the
date of effective payment.
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. 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.
7.
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.
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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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