Labour Disputes
Texto da decisão
REF FPSD-6668
Decision of the
Dispute Resolution Chamber
passed on 15 September 2022
regarding an employment-related dispute concerning the player John
Alberto Guidetti
BY:
Frans de Weger (the Netherlands), Chairperson
Tomislav Kasalo (Croatia), member
Jerome Perlemuter (France), member
CLAIMANT:
John Alberto Guidetti, Sweden
Represented by Elite Law SA
RESPONDENT:
Deportivo Alavés SAD, Spain
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I. Facts of the case
1.
On 5 January 2018, the Swedish player, John Alberto Guidetti (hereinafter: the Claimant),
and the Spanish club, Deportivo Alavés SAD (hereinafter: the Respondent) signed an
employment contract (hereinafter: the Contract) valid as from the date of signature until
the end of the 2017-2018 season.
2.
In accordance with the Contract, the Respondent and the Claimant (hereinafter jointly:
the Parties) agreed that, if the Respondent would not get relegated to the Spanish 2 nd
division at the end of the 2017-2018 season, the Contract would be extended until the
end of the 2021-2022 season.
3.
In this respect, the extension of the Contract until the end of the season 2021-2022
remained uncontested between the Parties.
4.
According to the Transfer Matching System (TMS), the season 2021-2022 ended on
30 June 2022.
5.
By virtue with the Third Clause of the Contract, the Respondent undertook to pay the
Claimant remuneration in accordance with the following terms:
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6.
“Season 2017/2018:
o EUR 409,500 net as salary in 7 equal payments;
o EUR 136,500 net as sign-on fee (“ficha”) to be paid on 10 July 2018;
Season 2018/2019:
o EUR 900,000 net as salary in 14 equal payments;
o EUR 300,000 net as sign-on fee (“ficha”) in two equal instalments
15 December 2018 and 10 July 2019;
Season 2019/2020:
o EUR 975,000 net as salary in 14 equal payments;
o EUR 325,000 net as sign-on fee (“ficha”) in two equal instalments
15 December 2019 and 10 July 2020 (see clause THIRD n. 3, lit. b.);
Season 2020/2021:
o EUR 1,050,000 net as salary in 14 equal payments;
o EUR 350,000 net as sign-on fee (“ficha”) in two equal instalments
15 December 2020 and 10 July 2021;--Season 2021/2022;
o EUR 1,125,000 net as salary in 14 equal payments;
o EUR 375,000 net as sign-on fee (“ficha”) in two equal instalments
15 December 2021 and 10 July 2022.”
on
on
on
on
Moreover, in accordance with the Eleventh Clause of the Contract, the Parties agreed as
follows:
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“This contract is expressly submitted to the legislation that is applicable to its place of
celebration, as expressly agreed upon by the parties that subscribe it, independently of
any other that may be applicable for any personal circumstance.
In matters not covered by this contract, the provisions of “Real Decreto 1.006/1985, de 26 de
junio, por el que se regula la relación laboral especial de los deportistas profesionales”, will be
followed.
For any litigation or disagreement that may arise from the interpretation or fulfilment of this
contract, the parties, renouncing their own jurisdiction, if they have it, submit to the jurisdiction
of the Courts of Vitoria-Gasteiz.”
7.
On 16 January 2020, the Parties signed an annex, suspending the Contract as from the
date of signature until 30 June 2020, on account of the Claimant’s temporary transfer to
the German club, Hannover 96 (hereinafter: the Suspension Agreement).
8.
In accordance with the First Clause of the Suspension Agreement, the Parties agreed as
follows:
“The parties agree to suspend the Labour Football Player Contract interrupting its effect until
the first July 2020, when it would recover its force and effects, recovering the Player his Labour
relation with Deportivo Alaves SAD”
9.
On 17 January 2020, the Respondent and Hannover 96 entered a loan agreement
(hereinafter: the Loan Agreement), by virtue of which the Claimant would be transferred to
the latter as from the date of signature until 30 June 2020.
10. In accordance with the Sixth Clause of the Loan Agreement, the following was agreed:
“The Player and Hannover agree that during the Loan period, the Player shall be a registered
player with Hannover under the Hannover Playing contract and shall be paid directly by
Hannover under such terms as agreed between himself and Hannover without any
contributions from Deportivo Alaves whatsoever.
During the loan period the player will not be entitled to receive any appearance bonuses from
Deportivo Alaves and the Player waives the right to any appearance fees due under his
professional contract and bonus and incentives with Deportivo Alaves for the entirety of the
loan period.
In that sense, during the loan period Hannover shall, at its own expense, procure that the
Player will receive all bonus payments as agreed between Hannover and the Player.”
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11. On 18 September 2020, the Parties signed an annex to the Contract (hereinafter: the First
Annex), in accordance with which the payments under the Contract were rescheduled.
12. In accordance with the Second Clause of the First Annex, it was agreed as follows:
“This addendum has the character of a non-extinguishing novation of the contract to which it
is incorporated, in such a way that what is not expressly modified by it, willremain in force for
all purposes.”
13. On 11 August 2021, the Claimant and the Respondent signed another annex to the
Contract (hereinafter: the Second Annex), in accordance with which the payments under
the Contract were once again rescheduled.
14. In accordance with the Fourth Clause of the Second Annex, the Parties agreed as follows:
“The parties agree that both Deportivo Alaves SAD and the player shall have the right, between
2nd July 2022 and 15th August 22 to unilaterally terminate the contract without any type of
justification. To do so, it will be sufficient to give a reliable notification to the other party prior
to the end of the last day above. in the event that the termination is executed, Deportivo Alaves
SAD shall immediately release the player’s registration and, if applicable, lies with any third
club to ease the immediate transfer of the player proceeding with the necessary activities
and drafting of documents under the Spanish and FIFA regulations. too easy exercising of this
buy-out clause by the player and its possible search of a third club Deportivo Alaves SAD shall
issue to the player an official letter confirming that his entire remuneration for the season
2022-2023 is EUR 1,175,000 net and that the player is the right holder of such buy-out clause
for free of his release.
Without prejudice to the exercise of this possibility, Deportivo Alaves SAD is obliged to pay the
Player the amount of the signing bonus (EUR 750,000 net) provided for in article three above,
as it would be matured due and payable on 1 July 2022 without any additional compensation
whatsoever. In turn the Player shall exercise his right with no compensation whatsoever
payable to Deportivo Alaves SAD.”
15. Moreover, in accordance with the Fifth Clause of the Second Annex, the Parties agreed as
follows:
“This addendum has the character of a non-extinguishing novation of the contract to which it
is incorporated, in such a way that what is not expressly modified by it, will remain in force for
all purposes.”
16. On 18 March 2022, the Parties drew up a draft agreement for the mutual termination of
the Contract. During the negotiation of said mutual termination, the Claimant raised with
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the Respondent that he believed that he was owed he sum of EUR 162,500, corresponding
to the second instalment of the sign-on fee / “ficha” for the 2019-2020 season.
17. On 21 March 2022, the Respondent disputed the allegation that the amount of
EUR 162,500 was due.
18. On the same day, the Claimant reiterated his position regarding his purported
entitlement to the amount of EUR 162,500.
19. On 24 March 2022, the Parties agreed that, with the entitlement to the payment
of EUR 162,500 being still in question, the mutual termination of the Contract would
be put on hold.
20. On 4 July 2022, the Claimant terminated the Contract with the Respondent by
virtue of the Fourth Clause of the Second Annex to the Contract. In the termination
letter, the Claimant states as follows:
“Dear Sirs,
pursuant to clause FOURTH of the annex signed between us on 11 August 2021, I hereby inform
you that I exercise my right to immediately terminate the Labour Contract and its further
Annexes currently in force with Deportivo Alavés SAD with immediate effect.
I therefore request that you confirm its safe receipt and that your club proceed to immediately
release my registration.
For the sake of clarity, by the present communication I do not renounce to any remuneration
accrued until today and still overdue from your club.
Thank you in advance for your prompt cooperation.”
21. On the same day, the Respondent replied to the Claimant, confirming the termination of
the Contract, stating as follows:
“Dear Mr Guidetti:
We hereby inform you that Deportivo Alaves SAD has decided to exercise the power of
contractual termination provided for in the addendum to the employment contract of
the professional player of 5 January 2018, signed between the Parties on 11 August 2021,
and according to that, the immediate effect is the early termination of your employment
relationship.
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The scope of the contractual termination implies the cancellation of your federative
licence, being able to register from the present communication in the club that you consider
appropriate, and a settlement including indemnity in your favour for a total amount of EUR
750,000 net, to be paid before 20 July 2022, without any additional indemnity or compensation
whatsoever.”
This letter was signed with the remark “recibido” by the Claimant.
II. Proceedings before FIFA
22. On 9 July 2022, the Claimant filed the claim at hand before FIFA.
23. On 8 August 2022, the Respondent filed its reply to the claim lodged by the Claimant.
24. On 11 August 2022, the submission phase of the procedure was closed by the FIFA
Administration.
25. On 12 August 2022, the Claimant submitted an unsolicited correspondence to the FIFA
Administration, which was not taken into account by the Dispute Resolution Chamber
when rendering a decision.
26. A brief summary of the Parties’ submissions is detailed below.
a. Position of the Claimant
27. The Claimant asserted that he was owed an amount of EUR 162,500, corresponding to
the second instalment of the sign-on fee – “ficha” – under the Contract for the 2019-2020
season, in accordance with art. 12bis of the Regulations on the Status and Transfer of
Players.
28. The Claimant argued that the payment of the second instalment of the sign-on fee for the
2019-2020 season was unpaid by the Respondent and that, in accordance with the
principle of pacta sunt servanda, it should be awarded to the Claimant.
29. In particular, the Claimant argued that, subject to the definition of a “ficha” under art. 20
of the Collective Bargaining for Professional Players in Spain, sign-on fees are usually
payable in addition to monthly salary payments and are, therefore, different in nature as
they do not depend on the performance of “professional activities performed by the player
against which payments are made”.
30. The Claimant, therefore, specifically rejected the previous argumentation of the
Respondent during the negotiation of the mutual termination that, as the Claimant
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had been on loan at Hannover 96, he was not entitled to any contractual payments
by the Respondent.
31. Moreover, the Claimant argued that the sign-on fee was due on 10 July 2020, after the
loan to Hannover 96 had expired (i.e. 30 June 2020, cf. First Clause of the Suspension
Agreement).
32. The Claimant requested payment of the outstanding amount of EUR 162,500 plus interest
as from 11 July 2020 until the date of effective payment.
b. Position of the Respondent
33. The Respondent rejected the claim in its entirety.
34. Firstly, the Respondent asserted that the sign-on fee was accrued during the period of the
loan of the Claimant to Hannover 96 and, as such, it should not be held responsible to
pay said fee.
35. The Respondent specifically pointed out that the clauses in the Contract and the
respective annexes are “open to interpretation” and that, as a result of the fact that it was
agreed that the Contract would be suspended during the period of the loan, and the
remuneration of the Claimant would be the responsibility of Hannover 96, the
Respondent shall not be held liable to pay any remuneration whatsoever to the
Claimant, including the disputed sign-on fee.
36. Furthermore, the Respondent argued that, while the date of payment was stipulated as
10 July 2020, the “accrual” of said amount occurred during the loan period itself, therefore
arguing that if any amount was payable, it would be payable by Hannover 96, in
accordance with the Sixth Clause of the Loan Agreement.
37. In this respect, the Respondent particularly relied on the fact that the Claimant had a
separate employment contract with Hannover 96 in which additional allowances were
agreed upon.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
38. 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 9 July 2022 and submitted for
decision on 17 October 2022. Taking into account the wording of art. 34 of the June 2022
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
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Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
39. 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 (July 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
Swedish player and a Spanish club. In this respect, the Chamber further noted that the
Parties expressly accepted the jurisdiction of FIFA in their respective submissions.
40. 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 (July 2022 edition),
and considering that the present claim was lodged on 9 July 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
41. 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 TMS.
c. Merits of the dispute
42. 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
43. 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, namely the second
instalment of the sign-on fee for the 2019-2020 season, in the amount of EUR 162,500.
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44. In this context, the Chamber recalled that the Respondent acknowledged not paying said
amount, and solely contested its own liability to make said payment in accordance with
the Contract. The Chamber, therefore, acknowledged that its task was to determine,
based on the evidence presented by the Parties, whether the Respondent had a valid
justification for not having complied with its prima facie obligations under the Contract.
45. The Chamber first recalled the First Clause of the Suspension Agreement, in consonance
with the Sixth Clause of the Loan Agreement, which stipulated that the Contract would be
suspended for the duration of the loan, more specifically, until 1 July 2020, and that
exclusively for this period, the Claimant’s salary shall be paid by Hannover 96. Moreover,
and more importantly, it was stipulated under the First Clause of the Suspension
Agreement that the Contract would re-enter into force once the loan period had expired,
i.e., on 1 July 2020.
46. In this context, the Chamber noted that the sign-on fee had fallen due on 10 July 2020, or,
in other words, after the loan of the Claimant to Hannover 96 had already expired, and
the Contract between the Parties had entered into force once again (i.e., 1 July 2020).
47. Furthermore, the Chamber took note of the Respondent’s argumentation that the second
instalment of the sign-on fee accrued during the period of the loan, and that, as such, the
loaning club – i.e. Hannover 96 – should be responsible to pay said fee.
48. In this respect, the Chamber wished to point out that the specification of the sign-on
fee / “ficha” as such in the Contract meant specifically that it was not related to the
performance of employment-related obligations, and that it was an unconditional
payment thereunder, thus not being affected by the Claimant’s loan to Hannover 96
during the period in which said amount allegedly “accrued”.
49. Lastly, the Chamber recalled that the Claimant never renounced his right to claim
outstanding remuneration under the Contract at the time the Contract was terminated.
50. In view of the foregoing and 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 Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the Contract concluded between the Parties, namely EUR 162,500.
ii. Consequences
51. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
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52. The Chamber observed that the financial obligations under the Contract deemed as
outstanding in the present case correspond to EUR 162,500.
53. 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 the Claimant the
amounts established as outstanding under the Contract, i.e. EUR 162,500, as detailed
above.
54. 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 outstanding amounts as from 11 July 2020 until the date of
effective payment.
iii. Compliance with monetary decisions
55. 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.
56. 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.
57. 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.
58. 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.
59. 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.
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d. Costs
60. 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.
61. 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.
62. 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, John Alberto Guidetti, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Deportivo Alavés SAD, has to pay to the Claimant EUR 162,500 net as
outstanding remuneration plus 5% interest p.a. as from 11 July 2020 until the date of
effective payment.
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 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.
6. 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.
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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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