Labour Disputes
Texto da decisão
REF FPSD-5170
Decision of the
Dispute Resolution Chamber
passed on 24 March 2022
regarding an employment-related dispute concerning the player Dyego
Wilverson Ferreira Sousa
BY:
Frans de Weger (Netherlands), Chairperson
Stijn Boeykens (Belgium), member
Elvis Chetty (Seychelles), member
CLAIMANT:
Dyego Wilverson Ferreira Sousa, Portugal
Represented by Diogo Pinto
RESPONDENT:
Shenzhen Football Club, China PR
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REF FPSD-5170
I.
Facts of the case
1.
On 1 July 2019, the Portuguese player Dyego Wilverson Ferreira Sousa (hereinafter: the
Claimant) and the Chinese club Shenzhen Football Club (hereinafter: the Respondent)
concluded an employment agreement, valid between 1 July 2019 and 31 December 2022.
2.
On 10 April 2021, the Claimant and the Respondent concluded a settlement agreement, by
means of which they agreed to terminate the contract with immediate effect and by means
of which the Claimant would receive from the Respondent the following amounts:
•
•
EUR 3,330,000 net of tax in 9 monthly instalments of EUR 370,000 net each in the
period between April and December 2021 to be paid on the 15th day of each month;
EUR 3,330,000 net of tax on 30 January 2022.
3.
Article 5 of the settlement agreement stipulates the following: ‘In case the club fails to pay
any of the instalments referred to in clause two, paragraphs a) and b) on the respective due
dates, the club shall be liable for interest on the basis of 15% p.a. Should the delay in
payment of the respective instalment exceeds 30 days then in such case any and all
instalments still pending shall become immediately due and payable’.
4.
After having played 10 matches for the Respondent in 2019, the Claimant was transferred
on loan basis to the Portuguese clubs Sport Lisboa e Benfica and Famalicao.
5.
In the months of October and November 2021, the Claimant Exchanged several text
messages with the Respondent, in which he repeatedly asked for updates on the situation
and conveyed how he needed the money he was owed by the Respondent.
6.
On 8 October 2021, the Claimant was informed by the Respondent that he would perhaps
receive one of two instalments between 15 October and 15 November, however to no avail.
7.
On 8 November 2021, the Respondent informed the Claimant that he would only receive
the payments in 2022.
8.
On 24 November 2021, the Claimant put the Respondent in default providing it with a 10
days’ deadline to remedy its default, however to no avail, as on 1 and 6 December 2021,
the Respondent proposed a new payment plan, which was not accepted by the Claimant.
II. Proceedings before FIFA
9.
On 16 February 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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a. Position of the Claimant
10. In his claim, the Claimant explains that the Respondent paid him the monthly instalments of
EUR 370,000 for the months of April, May, June and July 2022 (despite being due on 15 July
2021, said instalment of EUR 370,000 was only paid on 6 August 2021), however, that the
other instalments remained unpaid in the period after 6 August 2021.
11. As a result, the Claimant deems that on 16 September 2021, a total amount of EUR
5,150,000 net of tax became due and payable.
12. The requests for relief of the Claimant were the following:
•
•
to be awarded an amount of EUR 5,150,000, plus 15% interest p.a. as from 16
September 2021 until the date of effective payment;
to be awarded 15% interest p.a. on the amount of EUR 370,000 in the period
between 15 August and 15 September 2021.
b. Position of the Respondent
13. In its reply, the Respondent argued that the penalty of 15% p.a. on the due amount is
disproportionate and should be reduced to 5% interest p.a.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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 16 February 2022 and submitted for
decision on . 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.
15. 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 lit. b) of the
Regulations on the Status and Transfer of Players (March 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 Portuguese player
and a Chinese club.
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16. 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 Players (March 2022), and considering
that the present claim was lodged on 16 February 2022, the August 2021 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
17. 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
18. 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.
i. Main legal discussion and considerations
19. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties do not dispute that an amount of EUR 5,150,000
remained outstanding, however only strongly dispute whether or not a “penalty” of 15%
interest p.a. can be considered proportionate.
20. In this context, the Chamber acknowledged that it its task was to determine whether the
amounts claimed by the Claimant and not contested by the Respondent could indeed be
awarded as per the contents of the settlement agreement, and as to whether an interest
percentage of 15% p.a. can be considered proportionate.
21. First of all, the members focused on the wording of article 5 of the settlement agreement,
and concluded that based on the contents of said clause, in case of late payment of one of
the agreed instalments for more than 30 days, all other instalments would fall due
immediately.
22. Based on the foregoing, and also taken into account that the Respondent did not contest
said allegations of the Claimant, the Chamber concluded that on 16 September 2022, i.e.
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the 31st day after the non-payment of the instalment of EUR 370,000 due on 15 August
2021, all other instalments of the settlement agreement fell due.
23. What is more, as to the agreed interest rate of 18% p.a. as agreed upon in article 5 of the
settlement agreement, the Chamber found that such interest rate provided cannot be
considered excessive and/or disproportionate as per Swiss law and in accordance with the
jurisprudence of the Football Tribunal, and therefore, can be awarded to the Claimant.
ii. Consequences
24. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of the settlement agreement committed by
the Respondent.
25. The Chamber observed that – in line with the wording of article 5 of the settlement
agreement which contains an acceleration clause in case one instalment is overdue for more
than 30 days - the financial obligations deemed as outstanding in the present case correspond
to all instalments due in the period between 6 August 2021 and 30 January 2022 as per the
settlement agreement, i.e. according to the claim of the player the amount of EUR 5,150,000.
26. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
claimed as outstanding under the contract, in total EUR 5,150,000, as detailed above.
27. In addition, taking into consideration the Claimant’s request as well as the contents of the
settlement agreement, the Chamber decided to award the Claimant interest at the rate of
15% p.a. on the outstanding amounts as from 16 September 2021 until the date of effective
payment.
28. What is more, given the fact that the instalment of EUR 370,000 due on 15 August 2021
remained outstanding on 16 September 2021, the Chamber decided – in line with the
Claimant’s request – to additionally also award 15% p.a. on the amount of EUR 370,000 in
the period between 15 August 2021 and 15 September 2021.
iii. Compliance with monetary decisions
29. 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.
30. 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
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duration of the registration ban shall be of up to three entire and consecutive registration
periods.
31. 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.
32. 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.
33. 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
34. 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.
35. 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.
36. 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, Dyego Wilverson Ferreira Sousa, is accepted.
2.
The Respondent, Shenzhen Football Club, has to pay to the Claimant, the following amount:
- EUR 5,150,000 as outstanding amount, plus 15% interest p.a. as from 16 September
2021 until the date of effective payment;
- 15% interest p.a. on the amount of EUR 370,000 as from 15 August 2021 until 15
September 2021.
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 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.
5. The consequences shall only be enforced at the request of the Claimant in accordance
with article 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
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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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