Labour Disputes
Texto da decisão
REF FPSD-4938
Decision of the
Dispute Resolution Chamber
passed on 20 April 2022
regarding an employment-related dispute concerning the player Hugo Filipe
Gonçalves Martins de Sousa
BY:
André dos Santos Megale, Brazil
CLAIMANT:
Hugo Filipe Gonçalves Martins de Sousa, Portugal
Represented by Pedro Macieirinha
RESPONDENT:
Aris FC, Greece
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REF FPSD-4938
I.
Facts of the case
1.
On 15 October 2020, the Portuguese player, Mr Hugo Filipe Gonçalves Martins de Sousa
(hereinafter: the player or the Claimant) and the Greek club, Aris FC (hereinafter: the club or
the Respondent), concluded a settlement agreement in connection with the employment
relationship previously maintained between them (hereinafter: the settlement agreement).
2.
In accordance with clause 2 of the settlement agreement, the club undertook to pay the
player the total amount of EUR 235,000, payable as follows:
a. EUR 30,000 on 31 October 2020;
b. EUR 196,000 in 28 monthly instalments of EUR 7,000, being the first due on 30
November 2020 and the last one on 28 February 2023; and
c. EUR 9,000 on 31 March 2023.
3.
Additionally, clause 2, lit. b) of the settlement agreement read as follows: “In case the club
delays or does not pay two instalments in a row or two interpolated, and such delay or nonpayment exceeds ten days, all pending instalments become due with a penalty of 7,000 euros,
provided that the player has first sent a written notice to [the club] setting a deadline of
twenty (20) days for the remedy of the breach (i.e. the delay of the payment or the nonpayment) and such deadline has elapsed without [the club] remedying the breach”.
4.
On 20 September 2021, the player sent a first notice to the club requesting payment of EUR
49,000 corresponding to 7 instalments of EUR 7,000 each, due between 31 March and 30
September 2021.
5.
On 21 September 2021, the club replied to the notice and paid EUR 21,000 to the player.
Furthermore, it requested an additional deadline to comply with the remaining debt.
6.
On 23 September 2021, the player sent the club a second notice requesting payment of EUR
28,000, corresponding to 4 instalments of EUR 7,000 each, due between 30 June and 30
September 2021.
7.
On 14 October 2021, the player sent the club a third notice requesting payment of the same
EUR 28,000, corresponding to 4 instalments of EUR 7,000 each, due between 30 June and
30 September 2021.
8.
On 26 October 2021, the player sent the club a fourth notice requesting payment of the same
EUR 28,000, plus a penalty of EUR 7,000 as described in clause 2, lit. b) of the settlement
agreement.
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9.
On 2 November 2021, the player sent the club a fifth notice acknowledging receipt of a
partial payment of EUR 7,000 (i.e. the instalment due on 30 June 2021), but requesting
payment of the EUR 35,000 corresponding to the instalments due from 31 July 2021 until 31
October 2021, plus the penalty.
10. On 3 November 2021, the club provided proof of payment of EUR 7,000 (i.e. the instalment
due by 31 July 2021) and informed that the outstanding amounts would be soon liquidated.
11. On 4 November 2021, the player sent the club a sixth notice requesting payment of the EUR
28,000 corresponding to the instalments due from 31 August 2021 until 31 October 2021,
plus the penalty.
12. On 17 November 2021, the player lodged a first claim against the club before the Dispute
Resolution Chamber (DRC). The player requested to be awarded EUR 28,000, corresponding
to the instalments due 31 August 2021 until 31 October 2021, plus the penalty mentioned
in clause 2, lit. b) of the settlement agreement. The case was filed under reference no. FPSD4316.
13. On 3 December 2021, the club provided proof of payment of EUR 21,000 (i.e. the instalments
from 31 August 2021 until 31 October 2021).
14. On 6 December 2021, the player sent the club a seventh notice requesting payment of EUR
14,000 corresponding to the instalment due on 30 November 2021 plus the penalty.
15. On 27 December 2021, the club provided proof of payment of EUR 7,000 (i.e. the instalment
due by 30 November 2021).
16. On 31 December 2021, the player lodged a second claim before the DRC requesting payment
of the instalment due by 30 November 2021 and another penalty of EUR 7,000 as per clause
2, lit. b) of the settlement agreement. Said case was filed under reference no. FPSD-4704.
17. On 3 January 2022, the player sent the club an eighth notice requesting payment of EUR
14,000 corresponding to the instalment due on 31 December 2021 plus the penalty.
18. On 9 February 2022 and after being informed by the parties that the outstanding amount
had already been paid during the course of the proceedings, the DRC passed its decision in
case ref. no. FPSD-4316 and ordered the club to pay the player the total amount of EUR
7,000, corresponding the penalty described in clause 2, lit. b) of the settlement agreement.
II. Proceedings before FIFA
19. On 25 January 2021, the player 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 player
20. In his claim, the player referred to the several notices sent to the club for overdue payables.
In doing so, the player argued that the club was acting in bad faith by systematically delaying
the payment of the instalments under the settlement agreement.
21. In particular, the player alleged that the club’s failure to pay the instalment due on 31
December 2021 had triggered the penalty clause included in the settlement agreement (cf.
clause 2, lit. b) of such contract), entailing that the club should be liable to pay him the
outstanding amount plus EUR 7,000 because of the breach.
22. Based on the above, the player referred to art. 12bis of the FIFA Regulations on the Status
and Transfer of Players (RSTP) and claimed the total amount of EUR 14,000 (i.e. the instalment
of December 2021, plus the contractual penalty), “plus interest at 5% rate since the overdue
dates until effective payment and free of taxes and other administrative incomes that are
responsibility of the Respondent club”.
23. Finally, the player also argued that sporting sanction should be imposed on the club.
b. Position of the Respondent
24. The club failed to reply to the claim, in spite of being invited to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 25 January 2022 and
submitted for decision on 20 April 2022. 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.
26. 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 (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 Greek club.
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27. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (March 2022 edition), and
considering that the present claim was lodged on 25 January 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
28. 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 he 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. His 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 he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
30. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the case at stake pertains to a claim for penalty only in
connection to a settlement agreement signed between the parties.
31. In addition to the above, the Single Judge observed that the club, for its part, failed to present
its response to the claim of the player, in spite of having been invited to do so. In this way,
the Single Judge considered that the club renounced its right to defence and thus accepted
the allegations of the player.
32. With the above in mind, the Single Judge went on analysing the documentation brought
forward by the player in support of his claim. In doing so, he observed the player’s
argumentation according to which the club’s delay to perform the payment of the instalment
due by December 2021 triggered the penalty clause 2, lit. b) of the settlement agreement. As
such, the Single Judge was mindful that, despite having already received the outstanding
amount, the player is of the opinion that he is still entitled to receive extra EUR 7,000 as
contractual penalty.
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33. Against this background, the Single Judge recalled that the player had already lodged three
intertwined claims before FIFA, the details of which were summarized as follows:
Case Ref.
Date of the Claim
Relief sought (updated)
FPSD-4316
17 November 2021
EUR 7,000 penalty fee
(Trigger: instalments of August
and October 2021)
FPSD-4704
31 December 2021
FPSD-4938
25 January 2022
EUR 7,000 penalty fee
(Trigger: instalment of November
2021)
EUR 7,000 penalty fee
(Trigger: instalment of December
2021)
Status
Decision passed by the DRC on 9
February 2022. Penalty granted
to the player vis-à-vis clause 2,
lit. b) of the settlement
agreement.
Pending
Pending
34. In light of the foregoing, the Single Judge determined that the core of the dispute comes
from the assessment as to whether the penalty described in the abovementioned clause 2,
lit. b) of the settlement agreement should be only imposed only once or multiple times (i.e.
each time the player complies with the requirements therein established for putting the club
in default).
35. With the above in mind, the Single Judge moved to the analysis of the settlement agreement
and, specifically, to the wording of clause 2, lit. b). In doing so, he acknowledged that said
provision, apart from referring to a penalty fee, is also an acceleration clause. As such, it
establishes that in case of persistent default from the club after being granted the opportunity
to remedy the breach, the entire debt would become due “with a penalty of 7,000 euros”.
36. It followed, in the Single Judge’s opinion, that by requesting the outstanding amounts, the
player would equally be entitled to claim the contractual penalty. It does not mean however
that such penalty would be applied for each breach by the club. Had that been the case, the
player would be entitled to a penalty of 100% of the outstanding amount for each instalment
delayed – which is not reasonable nor proportionate in accordance with the jurisprudence of
the Football Tribunal.
37. Notwithstanding the above, the Single Judge took due consideration that – for reasons that
he could not determine – in all his three claims lodged before FIFA, the player did only request
the contractual penalty (and not the entire debt). What is more, the Single Judge highlightef
that the penalty in the amount of EUR 7,000 had already been awarded by the DRC via
decision passed on 9 February 2022.
38. As a consequence, the Single Judge concluded that the player’s claim should be rejected
under penalty of violating the general legal principle of ne bis in idem.
39. Finally, 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
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agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were
to be imposed on the parties.
40. 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.
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IV. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Hugo Filipe Gonçalves Martins de Sousa, is rejected.
2. 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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