Labour Disputes
Texto da decisão
REF FPSD-4336
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Agustin
Gonzalo Torassa
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairperson
Gonzalo de Medinilla (Spain), member
Jorge Gutierrez (Costa Rica), member
CLAIMANT:
Agustin Gonzalo Torassa, Argentina
Represented by Arsen Selmanaj
RESPONDENT:
FK Tirana, Albania
Represented by Alkis Papantoniou
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I.
Facts of the case
1.
On 10 July 2019, the Argentinian player, Agustin Gonzalo Torassa (hereinafter: the Claimant or
player), and the Albanian club, KF Tirana (hereinafter: the Respondent) signed an employment
contract (hereinafter: contract 1) valid as from as from the date of signature until 31 May 2020.
2.
According to the contract 1, the Respondent undertook to pay the Claimant, inter alia, the
following monies:
EUR 1,000 net as monthly salary;
EUR 5,000 as bonus for winning the national championship 2019/2020;
EUR 200 as monthly housing allowance.
3.
On 10 July 2019 as well, the parties concluded an agreement titled “For the sanctioning the
remuneration related to marketing and personal non-material rights relative to the image”, valid
for the period of 10 July 2019 until 31 May 2020.
4.
According to this agreement (hereinafter: agreement 1), the Respondent undertook to pay the
Claimant a monthly fee of EUR 4,000 net “for the exploitation of the image rights”.
5.
On 26 July 2020, the parties concluded a new employment contract (hereinafter: contract 2)
valid as from 1 August 2020 until 31 May 2021.
6.
According to the contract 2, the Respondent undertook to pay the Claimant, inter alia, the
following monies:
EUR 1,000 net as monthly salary, payable until 13th day of the next month.
7.
Art. 14 of contract 2 reads as follows: “All disputes regarding the interpretation and
implementation of this contract, the first will be subject of an attempt to an amicable solution.
Otherwise, competent to resolve their disputes will be only the National Dispute Resolution
Chamber FSHF and/or FIFA’s Dispute Resolution Chamber”.
8.
On 26 July 2020 as well, the parties concluded an agreement (hereinafter: agreement 2) relating
to the “alienation of personal non-material rights by the player in favour of the Club” for the
period of the duration of the contract 2.
9.
According to this agreement 2, the Respondent undertook to pay the Claimant, inter alia, the
following monies:
EUR 5,500 net as monthly payment;
EUR 7,000 net as bonus for winning the national championship 2020/2021.
10. Art. 7 par. 5 of agreement 2 establishes: “In the event of a lack of understanding, only the
District Court in Tirana will be competent for resolving disputes between the parties.”
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11. On 23 October 2021, the player put the club in default and requested payment of EUR 74,100
as outstanding remuneration within 10 days.
II. Proceedings before FIFA
12. On 18 November 2021, 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
13. In his claim, the player requested outstanding remuneration of EUR 74,100, as follows:
EUR 4,600 as accommodation allowance as of July 2019 until May 2021 (23x EUR 200),
plus 5 % interest as of the due dates.
Furthermore, the Claimant requested payment of legal costs in the amount of EUR 1,500.
14. In his claim, the player held that the claimed amounts remained unpaid, even though he put the
club in default.
15. Regarding the claimed bonus, the player submitted a printout confirming that the club won the
championship in the season 2019/2020.
16. The player maintained that art. 12bis RSTP shall be applicable.
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b. Position of the Respondent
17. In its reply, the Respondent contested FIFA’s competence to adjucate the matter at hand due to:
FIFA is not competent for image rights contracts (agreement 1 and 2), which are not
employment related, but purely commercial;
The jurisdiction clause in agreement 2 gives exclusive jurisdiction to the district court
of Tirana.
18. As to the substance, in case the DRC declares itself competent, the club rejected the claim, but
acknowledged a debt of EUR 21,900, as follows:
EUR 1,400 as housing allowance (November 2019 until May 2020);
EUR 12,000 resulting from agreement 1 (February to April 2020);
EUR 8,500 resulting from agreement 2, August 2020 and December 2020 partially,
November 2020.
19. In this regard, the Respondent pointed out that the amounts claimed falling due before 18
November 2019 are prescribed.
20. Furthermore, the club alleged having made additional payments not mentioned by the claimant:
EUR 10,102 as payment received from the municipality of Tirana on 26 November
2019 corresponding to EUR 5,000 as championship bonus and EUR 5,102 as salary of
January 2020 until April 2020 (note: untranslated extract from bank on file).
EUR 4,000 on 27 September 2021 as payment connected to agreement 2 (note: bank
receipt on file).
c. Reaction of the Claimant to alleged payments
21. The player confirmed having received the payment of EUR 4,000 on 27 September 2021 from
the club, but he denies that the payment of EUR 10,102 received from the municipality was
connected to the contracts or the agreements with the club.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 18 November 2021 and submitted for decision
on 24 February 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.
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23. 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 (August 2021 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 an Argentinian player and
an Albanian club.
24. However, the members of the Chamber noted that the Respondent contested the DRC’s
competence on the basis of an alleged jurisdiction clause in favour of local courts in agreement
2. Furthermore, the Responent held that that agreements 1 and 2 are “image rights contracts”,
for which FIFA is not competent either.
25. In continuation, with regard to the claimed payments in connection to agreement 1 and 2.
apparently signed by the parties, the Chamber also had to verify whether, for formal reasons
and due to the Respondent’s argument, if it was competent to deal with this specific component
or not. In fact it remains that this part of the claim could possibly not be considered due to the
Chamber lacking competence to deal with disputes related to image rights.
26. While analysing whether it was competent to hear this part of the claim, the Chamber wished
to highlight that said agreements contained elements which led to believe that it was not in fact
an image rights agreement but rather a separate agreement to the employment contract, i.e.
directly linked to the services of the Claimant as a player.
27. As a general rule, if there are separate agreements, the DRC tends to consider the agreement
on image rights as such and does not have the competence to deal with it. However, such
conclusion might be different if specific elements of the separate agreement suggest that it was
in fact meant to be part of the actual employment relationship. In the case at hand, such
elements appear to exist. In particular, the agreements contain inter alia stipulations regarding
a monthly salary, which are typical for employment contracts and not for image rights
agreements. Consequently, the Chamber decided not to consider the image rights agreement
as such, but determined that both agreements were in fact additional agreements to the
employment contracts instead.
28. In view of all the above, the Chamber established that agreement 1 and 2 are to be considered,
meaning that it is in a position to take it into consideration the relevant agreements when
assessing the Claimant’s claim.
29. In respect of the Respondent’s argument of the jurisdiction clause in agreement 2, the Chamber
referred to clause 7 of agreement 2, according to which: “In the event of a lack of understanding,
only the District Court in Tirana will be competent for resolving disputes between the parties.”
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30. The Chamber also recalled the content of art. 14 of contract 2, which reads: “All disputes
regarding the interpretation and implementation of this contract, the first will be subject of an
attempt to an amicable solution. Otherwise, competent to resolve their disputes will be only the
National Dispute Resolution Chamber FSHF and/or FIFA’s Dispute Resolution Chamber”.
31. Since the Chamber in its previouse consideration established that contract 2 and agreement 2
are linked to each other, both clauses have to be taken into consideration when analysing if a
clear and exclusive jurisdiction clause in favour of a local court has been established. As both
clauses are in fact contradictory, the DRC established that clause 7 of agreement 2 did not clearly
and exclusively establish the competence of a local court, in accordance with art. 22 lit. b) OR
art. 22 par. 1 lit. b) of the aforementioned Regulations.
32. In view of the above, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter had to be rejected and that the DRC is
competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players,
to consider the present matter as to the substance.
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 Players (August 2021 edition), and considering that
the present claim was lodged on 18 November 2021, the August 2021 edition edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
34. At this point, the Chamber referred to art. 23 par. 3 of the Regulations (edition August 2021),
which stipulates that the decision-making bodies of FIFA shall not hear any dispute if more than
two years have elapsed since the facts leading to the dispute arose. The application of this time
limit shall be examined ex officio in each individual case.
35. In this context, the Chamber recalled that the present claim was lodged in front of FIFA on 18
November 2021. Therefore, in line with art. 23 par. 3 of the Regulations, any amounts fallen
due before 18 November 2019 are affected by the statute of limitations.
36. The Chamber concluded that the Claimant’s request is partially time-barred. Consequently, the
specific part of the Claimant’s claim related to the payment of any amounts fallen due before
18 November 2019 is considered inadmissible.
b. Burden of proof
37. 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).
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c. Merits of the dispute
38. 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
39. 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 contracts 1 and 2 as well as agreements 1 and 2.
40. 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.
41. 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 contract concluded between the parties.
42. Furthermore, no reasonable justification was presented by the Respondent for not having
complied with the terms of the contract. In particular, the Chamber highlighted that the receipts
for the payment of EUR 10,102 were not translated and remained disputed by the Claimant.
43. Nevertheless, the DRC took notice that the player acknowledged receipt of the payment dated
27 September 2021 (EUR 4,000).
44. In this context, the Chamber concluded that the claim on housing allowances is partially timebarred and no amounts due before November 2019 shall be awarded. Moreover, the DRC
established that the housing allowances as of June 2020 lack contractual basis as no allowance
was defined in contract 2. Therefore, the DRC decided to award the amount of EUR 1,400
corresponding to the allowances between November 2019 and May 2020, along with 5%
interest p.a. as of the due dates.
45. Subsequently, the DRC turned its attention to the player’s clam related to season 2019/2020
(EUR 25,600), from which the Respondent acknowledged a debt of EUR 12,000, but failed to
remit any proof that it paid the residual part. Therefore, Chamber decided to award the amount
claimed EUR 25,600, along with 5% interest p.a. as of the due dates.
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46. Regarding the season 2020/2021, the DRC established that the entitlement remaining for the
player is the amount of EUR 11,500, which contains the salaries for August and September 2020
(2x EUR 6,500) as well as the outstanding part of December 2020 (EUR 2,500) less the
acknowledged EUR payment dated 27 September 2021.
ii. Consequences
47. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith, the
Respondent is held liable to pay the Claimant the outstanding amounts deriving from the
contract concluded between the parties, namely EUR 38,500, as detailed above.
48. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest at the rate of 5% p.a. as
of the respective due dates until the date of effective payment.
iii. Compliance with monetary decisions
49. 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.
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 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.
52. 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.
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53. 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
54. 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.
55. 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.
56. 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, Agustin Gonzalo Torassa, is partially accepted, insofar it is admissible.
2.
The Respondent, FK Tirana, has to pay to the Claimant, the following amount(s):
- EUR 200 as outstanding remuneration plus 5% interest p.a. as from 1 December 2019 until the date of effective payment;
- EUR 200 as outstanding remuneration plus 5% interest p.a. as from 1 January 2020 until the date of effective payment;
- EUR 200 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020 until the date of effective payment;
- EUR 200 as outstanding remuneration plus 5% interest p.a. as from 1 March 2020 until the date of effective payment;
- EUR 800 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until the date of effective payment;
- EUR 5,200 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 until the date of effective payment;
- EUR 200 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until the date of effective payment;
- EUR 5,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2020 until the date of effective payment;
- EUR 10,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2020 until the date of effective payment;
- EUR 5,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until the date of effective payment;
- EUR 6,500 as outstanding remuneration plus 5% interest p.a. as from 14 September 2020 until the date of effective
payment;
- EUR 5,000 as outstanding remuneration plus 5% interest p.a. as from 14 October 2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), 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.
6.
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.
7.
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).
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